Spl. Crl. Anti-Terrorism Appeal Nos. 301 & 302 of 2016
Date Order with Signature of the Judge
1.For orders on office objection alongwith reply as flagged.
2. For hearing of main case.
2.For hearing of M.A.No.12095/2016.
Present:
Mr. Justice Aftab Ahmed Gorar &
Mr. Justice Khadim Hussaim Tunio.
8th May, 2018.
Mr. Imdad Ali Malik, Advocate for appellant in both the appeals
Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh.
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Aftab Ahmed Gorar, J.:- During the course of arguments while scanning the record of both the appeals more particularly the statement under section 342 Cr.P.C. of the appellant, it appeared that no proper questions were put to the accused/appellant while recording statement under section 342 Cr.P.C. more particularly regarding FSL report of recovered weapon and report of Bomb Disposal Unit.
2. In such view of the matter, learned Deputy Prosecutor General, Sindh submitted that it is legal and Constitutional right of every accused that fair opportunity of hearing be provided to him. The contention raised by learned Deputy Prosecutor General, Sindh appears to be in accordance with law, Constitution as well as under the Qanun-e-Shahadat Order, 1984. Learned counsel for the appellant while agreeing with the above, requested that both the cases may be remanded to the trial court and directions for expeditious trial may be given to the trial court.
3. It needs not to be reiterated that all incriminating pieces of available record are required to be put to the accused as provided under section 342 Cr.P.C.; the record reflects that trial court did not apply its mind by recording the statement of accused under section 342 Cr.P.C. which is having no legal sanctity in the eyes of law. Examination/statement of accused under section 342 Cr.P.C. is not only a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence. Reliance in this regard may be made to the case reported in 2010 SCMR 1009. Reliance has also been placed on the case of ABDUL GHAFFAR V/S THE STATE (2011 MLD 239), wherein a Single Judge of this Court held that recovery of case property not put to the accused while his statement under section 342 was recorded, cannot be used as evidence against the accused in the circumstances. Reliance can also be placed on SHIRAL ALIAS SHER ALI V/S THE STATE (1999 SCMR 697), wherein Hon'ble Supreme Court held that law requires that any circumstance appearing in the evidence must be put to the accused before it uses against him. There is absolutely no reason as to why same was not suggested to the appellant and his explanation obtained there to. The court should not and must not disturb its judicial mind with gruesome nature or heinousness of offence, rather to appreciate the evidence in a proper and legal rhythm otherwise any such influence might lead the trial court to a patently wrong conclusion. Reference may be made to the case titled AZEEM KHAN AND ANOTHER VS. MUJAHID KHAN AND OTHERS (2016 SCMR 274). The court should not derail from the settled principle that in case of possibility of two interpretations of evidence, one favouring the prosecution and other favouring the accused, the latter one should be acted upon. Reference can be made to the case titled MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009). More so, expeditious disposal of trials was no doubt a good thing but it should not be at the cost of fair and just trial. It is settled principle of law that law leans adjudication on merits by providing fair opportunity to the accused.
4. It is not out of context to mention here that question of guilt or innocence of accused could not be decided without giving him an opportunity to explain the incriminating circumstances appearing against him as deposed by the prosecution witnesses. To meet the ends of justice and to see that none of the parties suffers on account of failure to bring on the record material evidence, we consider it fit to remand these matters to trial court for deciding the matters afresh as on perusal of record it appears that the appellant has been prejudiced by not confronting/putting specific questions regarding FSL report of recovered weapon and report of Bomb Disposal Unit while recording his statement under section 342 Cr.P.C. and has been deprived of his right of defence. Accordingly, these Criminal Appeals are partly allowed. The cases are remanded back to learned trial court for re-examination of appellant according to the requirements of S.342 Cr.P.C. The trial court is directed to re-examine the appellant within thirty days and thereafter proceed further and decide the matters. Office is directed to transmit the R&Ps of both the cases instantly to the learned trial court. The appellant is confined in jail, he be treated as UTP.
5. The Registrar of this Court is directed to circulate this order to all Judges/Judicial Magistrates of Subordinate Courts of the Province of Sindh for their future guidance and compliance.
J U D G E
*Aamir/PS* J U D G E