MANNU KHAN AND 3 OTHERS Versus THE STATE

MUHAMMAD MUNIR KHAN, J .--This Criminal Appeal No. 76 of 1984, connected Murder Reference No. 233 of 1985 and Criminal Revision No. 319 of 1986 filed by Manzoor Ahmad complainant for the enhancement of the fine and for awarding separate compensation under section 544-A, Cr.P. C. arise from the judgment of the learned Sessions Judge Bahawalpur whereby he, on 26-8-1984, convicted Mannu Khan, Faryad Ali, Abdul Malik and Waris Ali appellants under section 302/34, P.P.C. for the double murder of Ghulam Muhammad and Ahmad Bakhsh and under section 307/34, P.P. C. for the murderous assault on Manzoor Ahmad and Abdul Ghafoor P.Ws. and sentenced them as under:--

(i) Under section 302, P.P.C. all to death and a fine of Rs.5,000 each in default thereof one year R.I. each, on each count;

(ii) Under section 307/34, P.P.C. to three years R.I. and a fine of Rs.1,000 or in default thereof three months R.I.

It was directed that the amount of fine awarded under section 302/34, P.P.C. if recovered be paid to the legal heirs of the deceased and the amount of fine imposed under section 307/34, P.P. C. if recovered be paid to Manzoor Ahmad and Abdul Ghafoor injured P.Ws. as compensation under section 544-A, Cr.P. C.

2. The trial Court has disbelieved the incriminating recovery, the circumstance of the abscondence of Faryad Ali appellant, the defence plea raised by Mannu Khan appellant as well as defence evidence and while believing the alleged motive, ocular account of the occurrence given by Ghulam Abbas P.W. 9, Manzoor Ahmad P.W. 10 and Abdul Ghafoor P.W. 10, the alleged dying declaration Exh. P.U. of Ahmad Bakhsh deceased recorded by Muhammad Aslam A.S.I., P.W. 16, has convicted and sentenced the appellants as stated above.

3. Since after hearing the learned counsel for the parties, w feel inclined to set aside the convictions and sentences of the appellants on the ground of non-compliance of the mandatory provisions of section 342, Cr.P.C., we need not set out the facts in detail and enter into the merits of the case, we find that the dying declaration Exh.P.U. allegedly made by Ahmad Bakhsh deceased before Muhammad Aslam, A.S.I. , P. W. 16 has been believed and acted upon in convicting the appellants although their attention to this crucial piece of evidence was not drawn and no explanation thereof was sought from them at the time of their examination under section 342, Cr.P.C. It is, by now, well-settled that an accused person has to be given an opportunity, under the law to explain the evidence on which his conviction is sought to be or going to be based. This is a mandator requirement under section 342, Cr.P.C., which could not be ignored It is wholly against the provisions of Criminal Procedure Code and principle of natural justice that a person/accused should be convicted on the basis of something of which he was not given notice and to which he was never required to give explanation. In the peculiar circumstances of the case, we are convinced that failure an the part of the Court to draw the attention of the accused/ appellants to the dying declaration which has been used against them and has also been acted upon, has caused prejudice to them and has also resulted in miscarriage as well as failure of justice, and as such, it is a case of naked illegality. Had the appellants been given any opportunity to explain this important piece of evidence, they might have given some plausible explanation or might have led some evidence to rebut and meet the same. The question of prejudice is one of the inference from the facts and circumstances of each case and also depends upon the degree or error. Since the alleged dying declaration which was undoubtedly an important incriminating evidence has virtually influenced the mind of the trial Court in reaching at the conclusion of the guilt of the appellants, therefore, it cannot be said that the omission to question them regarding this piece of evidence was without slightest effect upon the course of justice in this case or that it had not caused any prejudice to the accused. It is not a mere formality but is an essential part of the trial that the accused should be given notice of the point /points which he must meet in order to exonerate himself. Mr. Ejaz Hussain Batalvi, the learned counsel for the complainant relied on 1974 S C M R 219, to contend that since the appellants were fully aware of the dying declaration which was exhibited on record in their presence and they were represented by a counsel in the trial Court and had available opportunity to cross-examine Muhammad Aslam A.S.I., P.W. 16, therefore, the omission to question them with regard to the dying declaration was at the best an irregularity curable under section 537, Cr.P.C. We do not feel persuade to agree with him. We find that the case relied on by him is quite distinguishable, inasmuch as, in that case the dying declaration was read over in the open Court in the presence of the accused but in the instant case, there is nothing on file to show that dying declaration Exh.P.U. was really read to them in the Court. It is a matter of common experience that the documents when exhibited in the Court are normally not read over or explained to accused, so, from they mere fact that the dying declaration was exhibited on record, no legitimate inference can be drawn that the same was in fact read over in the Court or that the accused knew its contents. Furthermore, in the instant case, conviction may be sustained on this piece of evidence alone provided it is found to be a wholly dependable. This piece of evidence may also be used to corroborate or contradict other evidence. We have already held that the omission to give notice of the dying declaration has caused prejudice to accused/ appellants. We feel that the dying declaration Exh. P. U. is essential for the just decision of the case and unless notice thereof is given to the accused and opportunity of explaining the same is afforded to them, this piece of evidence cannot be considered. For all these reasons, we are of the view that the conviction of the appellants under sections 302/34 and 307/34, P. P. C. recorded by the trial Court, is unsustainable.

The upshot of the above discussion is that there being n satisfactory basis to uphold the convictions and sentences of the appellants, the same are set aside and the case is remanded fore retrial from the stage of examination of the accused under section 342, Cr.P. C. The connected Revision automatically fails.

Death sentence is not confirmed.

M.Y.H./M-497/L Case remanded.