Muhammad Tariq vs The State

NAIMATULLAH PHULPOTO, J:- Appellant Mohammad Tariq was tried by learned V-Additional Sessions Judge, Karachi Central, in Sessions Case No.362 of 2005 for offence under section 302, PPC. After full dressed trial, by judgment dated 15.09.2009, appellant Muhammad Tariq was convicted under section 302, PPC and sentenced to death, he was ordered to be hanged by neck till he is dead. Trial Court made reference to this Court for confirmation of death sentence as required under section 374, Cr.PC. Appellants filed appeal against conviction and sentence recorded by the trial Court. By this judgment, we intend to dispose of the appeal and reference made by the trial Court for confirmation.

2. Mr. Khawaja Naveed Ahmed, learned counsel for the appellant submits that it is the case of the prosecution that appellant was arrested from the shop where dead body of deceased was lying, so also knife. Trial Court while convicting the appellant has mainly relied upon this piece of evidence.

Learned counsel for the appellant submits that trial Court while recording the statement of accused under section 342, Cr.PC has committed illegality by not putting material questions to the appellant and he submits that case may be remanded back to the learned trial Court for recording the statement of accused under section 342, Cr.PC afresh, in accordance with law. In support of his contentions, he relied upon the case of FARRUKH SAYYAR and 2 others versus CHAIRMAN, NAB, ISLAMABAD (2004 SCM R 1) and unreported judgment of Honourable Supreme Court of Pakistan in Criminal Appeal No.292 of 2009 (MUHAMMAD HASSAN versus THE STATE).

3. Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh, recorded no objection for remand of the case to the trial Court for recording statement of accused under section 342, Cr.PC afresh by putting all incriminating pieces of evidence to the accused so as to provide him an opportunity to explain his position in that regard.

4. The legal position has been enunciated by the 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, relevant portion is reproduced 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."

5. We have carefully perused the evidence as well as statement of the accused recorded under section 342, Cr.PC at Ex-14, it is clear that all the incriminating pieces of evidence on which trial Court had placed reliance were not put to accused at the time of recording his statement, particularly the pieces of evidence collected from the shop, from where accused was arrested so also question regarding crime weapon. In the above circumstances, while relying upon the above said authority we have come to the conclusion that trial Court has committed illegality which is not curable under law. 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 this regard and denial of such an opportunity to the accused person defeats the ends of justice. It is equally settled that a failure to comply with this mandatory requirement vitiates a trial. In the present case death sentence has been awarded to the appellant and we have been shocked by the cursory and casual manner in which trial Court had handled the matter of recording of appellant's statement under section 342, Cr.PC, which statement is completely shorn of the necessary details which were required to put to the accused so as to provide them an opportunity to explain his position in that regard and denial of such opportunity defeats the ends of justice. 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 had vitiated the appellant's conviction and sentence recorded by the trial Court.

6. In view of the above legal and factual position, this appeal is allowed, impugned judgment dated 15.09.2009 passed by the trial Court is set aside and the case is remanded back to the trial Court for recording the statement of accused under section 342, Cr.PC afresh and then to proceed with the matter in accordance with law. Reference for confirmation of death sentence is answered in negative and revision is accordingly disposed of. We took note of the fact that occurrence had taken place on 16.08.2005. We are sad to remand the case back, finding no other option. Thus, trial Court is directed to complete the post remand proceedings of the case within two months.

7. Mr. Khawaja Naveed Ahmed in the end pointed out that appellant was granted bail by this Court during trial and prayed that bail may be granted to the appellant. Needless to mention that the appellant would be at liberty to move the bail application before the trial Court, the same shall be decided by the trial Court, in accordance with law.

8. Consequently, Criminal Appeal No.207 of 2009 and Confirmation Case No.03 of 2009 are accordingly disposed of.