DOST MUHAMMAD alias DOSSO vs THE STATE

' MIAN ABDUL KLALIQ, J.---This criminal appeal has been filed against the judgment dated 9-10-1991 passed by the learned Special Judge (Special Court Suppression of Terrorists. Activities), Bahawalpur Division, Bahawalpur whereby the appellant was convicted and sentenced under section 13 of the Arms Ordinance XX of 1965 to undergo seven years' R.I. And a fine of Rs,5,000 in default whereof to further undergo R.I. For two years.

2. Briefly, the prosecution case is that P.W.7 Muhammad Afzal Gill, A.S.I. On 11-2-1991 at the spot drafted complaint Exh.PA to the effect that he alongwith Abdur Razzaq P.W.3 and Muhammad Hanif P.W.6 were present and the appellant in custody during investigation led to police party to the residential room of his house and from quilts lying on the cot, took out Klashnikov P.1 alongwith magazine Exh.P.2 containing 20 bullets which were secured by P.W.7 vide memo. Exh.PC attested by Muhammad Hanif P.W.6 and Abdur Razzaq P.W.3. As the appellant could not produce any licence, P.W.7 sent Exh.PA to the police station on 4-2-1991 where on its basis, formal F.I.R. Exh.PA/1 was drafted by P.W.1 Shafqaat Ali on the same day.

3. The appellant was challaned and sent up for trial. A charge under section 13/20/65 of Arms Ordinance was framed against him to which he denied and claimed trial but without recording the prosecution evidence, the appellant was convicted and sentenced by the learned trial Judge on 6- 5-1991 as he could not pay the costs of Rs,1,000 with which he was burdened as P.Ws. Could not be examined due to the non-ability of the learned counsel for the appellant to cross-examine the P.Ws. Because he was not prepared with the case and vide judgment (CrAS&T) 30/91/BWP) dated 8-7-1991 of a Division Bench of this Court, the case was remanded while accepting the appeal and the trial Court was directed to proceed with the trial in accordance with law.

4. The learned trial Court without framing a fresh charge proceeded with the trial and recorded the statements of seven P.Ws. As well as the statement of the appellant under section 340(2), Cr.P.C.

On oath as (D.W.2).

5. While hearing the learned counsel for the parties, it came to our notice that after earlier order of remand passed by a Division Bench of this Court (Appellate Court), dated 8-7-1991, no fresh formal charge was framed against the appellant and the learned trial Judge had proceeded with the trial and after recording the statements of seven P.Ws. And two D.Ws. Had convicted and sentenced the appellant. Even the statement of the appellant under section 342, Cr.P.C. Was not recorded, although it has been mentioned in the daily order sheet that the same was recorded. Learned counsel for the appellant had stated at the bar that the learned trial Judge had obtained thumb- impression of the appellant on a blank paper for doing the needful. Moreover, the statement made by the appellant on oath under section 340(2), Cr.P.C. Does not bear his signature or thumb- impression and as well as signature of the learned trial Judge. It was the duty of the learned trial Judge to record the statement of the appellant under section 342, Cr.P.C. To enable him to explain circumstances appearing in evidence against him and its failure, resulted in injustice. The appellant was prejudiced. The trial conducted by the learned lower Court seems to be a mockery of law.

6. Pursuant to the above discussion, we are left with no option except to allow the appeal, set aside the impugned judgment and remand the case to the learned trial Court for trial, in accordance with law.