MUSTOO alias GHULAM MUSTAFA and anothers vs THE STATE

' MUHAMMAD MOOSA K. LEGHARI, J.--- These appeals arise out of judgment, dated 7-3-1995 passed by the learned Judge, Special Court (STA), Nawab Shah in Case No,159 of 1992, whereby the appellants alongwith co-accused were convicted and sentenced to suffer R.I. For life and their movable and immovable property was ordered to be confiscated to the extent of Rs,50,000 each and in default thereof to undergo R.I. For 3 years more for the offence under section 365-A/34, P.P.C.

All the accused including the appellants were also convicted and sentenced to suffer R.I. For life inter alia with fine of Rs,30,000 each and in default thereof to suffer further R.I. For two years, for the offence under section 302/34, P.P.C. It was further directed that all the sentences to run consecutively. The appellants were convicted in consequence of F.I.R. Crime No,9 of 1992 registered at Police Station Lakhat for the offences mentioned hereinabove.

2. We have heard Syed Madad Ali Shah, learned counsel for the appellants and Mr. Mukhtiar Khanzada learned counsel for the State.

3. Learned counsel for the appellant contended that the only piece of evidence against the appellant was their identification in the identification parade but the appellants were not confronted with this piece of evidence during their examination under section 342, Cr.P.C. He further contended that the appellants were also not confronted with regard to the quantum of amount of ransom. In support of the above contentions learned counsel relied upon the case-law reported as Meer Muhammad alias Miran and another v. The State 2000 M LD 370. Atta Muhammad and 2 others v. The State 1994 PCr.LJ 180, Gulab Sher and others v. The State 1992 PCr.LJ 1835, Mir Ahmed Khan v. Secretary to Government and others 1997 SCM R 1477 and Muhammad Hassan v.

Muhammad Ismail and others 1999 SCM R 697.

4. Learned counsel for the State conceded to the factual position to the extent that the question with regard to the appellants' identification in the identification parade was not put to them while recording their statement under section 342, Cr.P.C. In view of this learned State Counsel has consented o remand of the case.

5. We have given due consideration to the arguments advanced at the bar and the case-law cited by the learned counsel for the appellants and also perused the record. While perusing the statements of the appellants recorded by the trial Court under section 342, Cr.P.C. We found that no question with regard to the evidence of their identification was put to the accused/appellants, as such the appellants were in fact deprived of their right to explanation. In our humble view the wisdom behind recording statement of accused under section 342, Cr.P.C, is based on the principle that no one should be condemned unheard and that the accused should be heard and provided an opportunity of rebuttal of what is prima facie proved against hitt, on every circumstance appearing in evidence against him. Similar laiew has been taken by the Lahore High Court in case reported as Atta Muhammad and 2 others v. The State 1994 PCr.LJ 180.

6. Since the only incriininating piece of evidence against the appellants was their identification, in the identification parade it was obligatory upon the trial Court to have brought that circumstance into the notice of the appellants while recording their statements under section 342, Cr.P.C.

Admittedly this was not done. This renders the conviction and sentence awarded illegal. Similar view was taken by a Division Bench of this Court in the case of Mir Muhammad alias Miran v. The State 2000 M LD 370.

7. In the case of Munir Ahmed alias Munni v. The State 2001 SCM R 56 Honourable Supreme Court was pleased to olserve as under:-- "No question with regard to this incriminating piece of evidence was put to the appellant during his examination under section 342, Cr.P.C. This is undoubtedly quite strange. In laws, if an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to the accused the same shall not be considered as evidence against him."

8. In this view of the matter we are of the view that the sentence awarded to the' appellants cannot be maintained and accordingly the impugned judgment is hereby set aside. Consequently the case is remanded back to the trial Court for recording the statements of the appellants afresh under section 342, Cr.P.C. With the directions to confront them with all the incriminating evidence including identification parade and so also the quantum of the ransom amount having been allegedly obtained separately in accordance with law.

9. Keeping in view the fact that the appellants are in jail since last 8 years and the case is being remanded by consent it is ordered that the appellants be released on bail on their furnishing surety in the sum of Rs,2,00,000 (two lacs) each and P.R. Bond in the like amount to the satisfaction of the trial Court.

10. The trial Court is directed to complete this exercise of recording the evidence of appellants and conclude the case by recording the judgment within a period of three months. The cases were remanded by a short order dated 11-1-2001 and these are the reasons for the same.