IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 372 of 2019

Appellant: Nasir Abbas @ Khan through Mr. Irfan Bashir Bhutta advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Complainant: Muhammad Shahzad present in person

Date of hearing: 07.09.2022

Date of judgment: 07.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant together with rest of the culprits in furtherance of their common intention committed murder of his wife Mst. Muhidsa by slitting her throat with churri, for that he was booked and reported upon. After due trial, he was convicted for an offence punishable u/s 302 PPC and was sentenced to undergo rigorous imprisonment for 14 years and to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned X-Additional Sessions Judge, Karachi East vide judgment dated 01.06.2019, which is impugned by the appellant before this Court by preferring the instant Appeal.

2. On perusal of record, it reveals that after closure of evidence by the prosecution, P.W Mst. Kaleem Bibi was called and examined. After her examination, it was necessary for learned trial Court to have recorded the statement of accused under Section 342 Cr.P.C afresh. The appellant was not legally competent to have relied upon his earlier statement recorded under Section 342 Cr.P.C, such omission has prejudiced the appellant in his defence. Not only this, it is not defined by learned trial Court in impugned judgment that under which clause of Section 302 PPC, the appellant was going to be convicted, such omission has rendered the judgment to be illegal in terms of section 367(2) Cr.P.C, which prescribes that the judgment should specify the offence/penal section for which the accused is punished and sentenced.

3. In case of Muhammad Qasim and another Vs. The State (1999 YLR 133), it has been held by Hon’ble Federal Shariat Court that;

“The upshot of above discussion is that there is no escape from remand of the case firstly, because after recording the statement of P.W.4 the petitioners were not questioned under section 342 Cr.P.C and secondly, if at all the exercise would have been done still it would have been of no use because examination of the accused under section 342 Cr.P.C must precede the stage when the accused is required to adduce evidence in his defence.”

4. Learned counsel for the appellant and learned DPG for the state who is assisted by the complainant when were confronted with above, were fair enough to say that such omissions could only be cured on remand of the case.

5. In view of above, the impugned judgment is set aside with direction to learned trial Court to re-write the same after recording statement of the appellant under Section 342 Cr.P.C afresh, within three months after receipt of copy of this order, under intimation to this Court.

6. Instant appeal is disposed of accordingly.

JUDGE

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