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Criminal Appeal No. 129 of 1982, decided on 8th December, 1986.

‑‑‑Ss. 302 &307‑‑Criminal procedure Code (V of 1898), S. 342‑‑Appeal‑ Contention of accused that evidence of recovery of weapon used in commission of offence and report of Ballistic Expert which was positive were used against accused but no question under S. 342, Cr.P.C., put to him on these incriminating pieces of evidence‑‑Accused held prejudiced as such‑‑Trial vitiated‑‑Order of conviction and sentence set aside‑‑Case remanded to Trial Court for re‑examination of accused under S.342, Cr.P.C. and for recording finding afresh after giving a chance of defence to accused.

1986 P Cr. L J 1723 and 1987 and 1985 P Cr. L J 469 and 1677 ref.

Ghulam Haider Memon for Appellant.

G.R. Warsi, Abdul Kadir Halepota and Abdul Ghafoor. Mangi, A.A.‑G. for the State.

Dates of hearing: 3rd and 8th December, 1986.

The appellant has been convicted a/s 302, P.P.C. by the learned Additional Sessions Judge, Nadin by means of his order, dated 30‑1‑1982 whereby he sentenced the appellant u/s 302/307, P.P.C. fie was referred to the Home Department, Government of Sind as he was juvenile at the time of offence. The Home Secretary, Government of Sind has ordered that accused to be detained for a period of five years from the date of issue of the order.

The prosecution case in brief is that the complainant had a dispute with Amir Mohammad Khan over land since last 6‑7 years. On 26‑9‑1978 in the morning the complainant alongwith his son Niaz Ali, Noor Khan Khoso and Jaffer Khoso were working in his land. At about 11‑00 a.m. the present appellant armed with a double barrel gun, came there and called Niaz Ali. As soon as Niaz Ali reached near the accused he fired gun at Niaz Ali which struck him on his chest and the pellets also struck Rehmat Ali. On sustaining gun shot injury, Niaz Ali fell down.

After usual investigation the accused was sent up to face the trial under section 302, P.P.C. At the trial the prosecution examined 11 witnesses, it is not necessary to refer to the evidence of the witnesses on record. After the close of the prosecution side, the accused was examined under section 342, Cr.P.C. and he denied all the allegations. He produced one defence witness. The learned trial Judge has convicted the appellant as he found him guilty of the charge.

The learned counsel for the appellant has stated that the recovery of weapon used in the commission of offence has been used against the appellant. It is also stated that the report of Ballastic Expert is in positive and the same is also used against the appellant. The motive has been used against the appellant but no question under section 342, Cr.P.C. has been put to the appellant on these incriminating pieces of evidence, therefore, I the appellant had been pr judiced. This irregularity is not cureable under section 537, Cr.P.C. It is also contended by the learned counsel for the appellant that the certificate as required under section 364, Cr.P.C. has not been appended with the statement of the accused recorded a/s 342, Cr.P.C. The learned counsel has referred to 1986 P Cr. L J 1723 and 1987 and 19851 PCr.LJ 469 and 1677.

I have also heard Mr. A.Q. Halepota and Mr. Abdul Ghafoor Mangi, learned A.A.‑G.

As the prejudice has been caused to the appellant, therefore, the trial has vitiated. I, therefore, accept this appeal and set aside the order of the learned Sessions Judge and the order of the Home Secretary, Government of Sind and remand the case to the learned Sessions Judge for re‑examination of the accused under section 342, Cr.P.C. and the irregularity pointed out should be cured and thereafter the accused should be given a chance of defence and after the examination of the defence witnesses should record fresh finding. The accused is on bail and he shall remain on bail already furnished.

M.Y.H./J‑18/K Case remanded.

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