ASHRAF and 4 others vs THE STATE

' CH. EJAZ YOUSAF, C.J.--- This appeal is directed against the judgment dated 30-1-2002 passed by the learned II-Additional Sessions Judge, Dadu whereby appellants were convicted under sections 396/397, P.P.C. Read with section 17(4) of the Offences Against Property (Enforcement of Hudood)

Ordinance, 1979 and sentenced to life imprisonment each alongwith a fine of Rs,25,000 each or in default thereof to further undergo R.I. For two years each. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants.

2. The facts lie in a small compass. The appellants were challaned to face trial under sections 396/397, P.P.C. Read with section 17(4) of the Offence Against Property (Enforcement of Hudood)

Ordinance, 1979 on the charge that they had on 7-6-1987 at 8-45 p.m. Allegedly committed dacoity on the road near Dadu canal and in course thereof murdered one Abdul Hameed.

3. Charge was accordingly framed to which the appellants pleaded not guilty and claimed trial.

4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced six witnesses, in all, thereafter statements of the accused persons under section 342, Cr.P.C. Was recorded. They, however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.

5. After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.

6. We have heard Mr. Allah Bachayo Soomro, Advocate, learned counsel for the appellants, Mr. Muhammad Arshad Lodhi, Assistant Advocate-General, Sindh, and have also perused the entire record with their assistance, carefully.

7. It has been, mainly, contended by the learned counsel for the appellants that though the appellants were charged for committing murder in course of dacoity by inflicting gun-shot wounds and recovery of weapons from their possession has been taken as an incriminating piece of evidence in recording convictions against the appellants yet, the trial Court has omitted to specifically question the appellants with regard thereto within the purview of section 342, Cr.P.C.

Thereby rendering the impugned judgment as untenable. He has pointed out that the learned trial Judge has only questioned appellant Peeral on the point of recovery of hatchet and has provided no opportunity to the rest of the appellants to explain their position with regard to the recoveries, especially of weapons, allegedly effected from them. It is further his grievance that trial of the case has been conducted in a hotchpotch manner inasmuch as the same question which was earlier put to appellant Peeral was repeatedly put to the rest of the appellants and in doing so the learned trial Judge has not even bothered to change language of the question which implies that he was absolutely unaware of the evidence led by the prosecution at the trial. He has maintained that since omission to specifically question the appellants on substantial points of incriminating pieces of evidence has gravely prejudiced .The appellants in their defence, rather misled, therefore, the impugned judgment is not sustainable.

8. Mr. Muhammad Arshad Lodhi, Assistant Advocate-General, Sindh, after going through the record has confirmed that except Peeral none of the appellants have in the course of their statements recorded under section 342, Cr.P.C., been questioned by the learned trial Judge with regard to the recoveries effected from them. He, has, however, pleaded that since, the omission so made appears to have taken place due to inadvertence, therefore, the prosecution may be afforded an opportunity to rectify the defect by remanding the case to learned trial Judge foe re-examination of the appellants under section 342, Cr.P.C.

9. Notwithstanding the fact that the learned counsel for the State has not controverted the contention raised by the learned counsel for the appellants, we have ourselves, minutely gone through the record of the case. It reveals that a .12 bore shot-gun, an automatic pistol, nine live cartridges alongwith a magazine were recovered on the pointation of accused Allu vide Exh.11-A whereas another SBBL gun was recovered on the pointation of appellant Aslam from his house vide Exh.17-B. Likewise, one SBBL gun, allegedly used in the crime, was recovered from the possession of appellant Ashraf alias Achho vide Exh.16-C. Another SBBL gun was recovered from the possession of appellant Akku vide Exh.16-B. In addition, a Lathi and a hatchet were also recovered from the possession of appellants Budho and Peeral vide Exh.16-E and Exh.16-A respectively. It is an admitted fact that deceased succumbed to the injuries caused by fire-arms and the recovered weapons particularly, one recovered from Ashraf alias Achho were allegedly used in the crime. Therefore, the learned trial Judge should have been alive to the situation and have questioned the accused persons with regard to each and every incriminating piece of evidence available on record thereby enabling them to explain their position.

' We may observe here that compliance with the provision of section 342 of the Code of Criminal Procedure, in accordance with its terms, is essential and departure therefrom is not permissible, if some prejudice is shown to have been caused to the accused. The use of word "shall" in latter part of subsection (1) of section 342 denotes that examination of the accused is mandatory and not discretionary. Rather, it is proscriptive in the sense that if, it is found by the trial Court that any circumstance appearing in evidence against the accused is likely to contribute towards his conviction then the Court would not be competent to take the same into account without questioning him on that point. Perusal of section 342(1), Cr.P.C. Further leads to the inference that the object of the examination of the accused is, to give him an opportunity of explaining the circumstances, which tend to incriminate him or likely to influence mind of the Judge in arriving at a conclusion adverse to him. Likewise, the addition of the words "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" in section .342(1) further suggest that examination of the accused is not a mere formality but a necessity. To our mind, the above words have been thoughtfully inserted in the section to ensure that the principle contained in the Judicial Maxim "Audi Alteram Partem" is fully complied with. It would be worthwhile to mention here that section 342, Cr.P.C. Which for the purpose of ready reference and convenience is reproduced hereinbelow, has two parts. The first part gives discretion to the Court whereas the second part is mandatory. Under the first part the Court may put such questions to the accused which may be deemed appropriate in arriving at a just conclusion whereas, under the second part examination of the accused is a must because purpose is to point out salient points appearing in evidence against him and ask for an explanation. Section 342, Cr.P.C. Reads as follows:-- "342. Power to examine the accused.--- (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

' It may also be noted here that in some cases though it has been held that an error or omission which falls within the category of "curable irregularities" within the purview of section 537, Cr.P.C.

Does not necessarily vitiate the trial, yet, in certain cases where, the accused is not questioned at all, or his attention is to an important piece of evidence which implicates him is not invited, the omission so made would be fatal. In this view we are also fortified by the following reported judgments:-- ' (1) Munir Ahmad alias Munni v. The State 2001 SCM R 56, (2) Asif Ali Zardari and another v. The State PLD 2001 SC 568, (3) Rattan Singh v. State of H.P. AIR 1997 SC 768, (4) Sharad Birdhichand Sarda v.

State of Maharashtra AIR 1984 SC 1622 and (5) State of Maharasthra v. Sukhdeo Singh 1992 Cr.LJ 3454 (SC).

10. Since, in the instant case, the learned trial Judge has not adopted mandatory procedure in conducting the trial and has failed to question the appellants on material points of the case including the recovery of weapons within the purview of section 342, Cr.P.C., therefore, we are left with no option but to remand the case. Accordingly, the impugned judgment, dated 30-1-2002, passed by the learned II-Additional Sessions Judge, Dadu is set aside and the case, with consent of the parties, is remanded to the learned trial Court for its decision afresh, in accordance with law with the direction that the accused persons be re-examined under section 342, Cr.P.C., and their attention be specifically invited to all the incriminating pieces of evidence/circumstances laid on record and they be provided opportunity to offer explanation with regard thereto. The appellants shall be at liberty to lead evidence in their defence or to appear themselves as their own witnesses, in terms of section 340(2), Cr.P.C. If they choose to do so.