2019 P Cr. L J 1731
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD AYUB and others---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 38, 39, 44, 47, 50, 63 and 65 of 2016, decided on 23rd July, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 342---Accused, examination of---Word 'shall'---Connotation---Principles of natural justice---
Applicability---Scope---Use of word 'shall' in S. 342(i), Cr.P.C. indicates that examination of accused is
mandatory and not discretionary---If after conclusion of trial it is found by Trial Court that any
circumstances appearing in evidence against accused is lightly helpful towards his conviction then court
would not be competent to take same in account without questioning him on that point so that accused
may be able to explain his position properly.
(b) Penal Code (XLV of 1860)---
----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal
Procedure Code (V of 1898), S. 342---Criminal breach of trust, cheating, forgery and misconduct---
Appreciation of evidence---Examination of accused---Complainant lodged FIR against accused persons
who were government servants for criminal misconduct and bogus appointments---Statement of accused
persons was recorded under S. 342, Cr.P.C. by Trial Court in a very stereotype manner---Relevant and
very important incriminating pieces of evidence were not put to accused persons for their explanation/
reply---All incriminating pieces of evidence brought on record under S. 342, Cr.P.C. were not put to
accused, when their statements were recorded enabling them to explain and reply same whereas, Trial
Court used such piece of evidence for convicting accused---If any piece of evidence was not put to
accused in his statement recorded under S. 342, Cr.P.C. same could not be used for conviction---Trial
Court while passing judgment committed illegality and violated provisions of S. 342, Cr.P.C.---High
Court set aside judgment passed by Trial Court and remanded matter to Trial Court to record statement of
accused persons under S. 342, Cr.P.C. afresh by putting all incriminating pieces of evidence---Appeal
was allowed accordingly.
Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Nawaz and others v. The State and
others 2016 SCMR 267 and Qaddan and others v. The State 2017 SCMR 148 rel.
(c) Administration of justice---
----Doing of a thing---Where an act was provided to be done in a particular manner it had to be done in
that manner and if not done, same could not be lawful. [p. 1736] C
H. Shakeel and Naveed Ahmed Qambrani for Appellants (in Criminal Appeals Nos. 38 and 39 of
2016).
Muhammad Tahir (absent) for Appellants and Appellant in person (in Criminal Appeal No. 47 of
2016).
Naseebullah Tareen for Appellants (in Criminal Appeal No. 50 of 2016).
Syed Ayaz Zahoor for Appellants (in Criminal Appeals Nos. 44 and 63 of 2016).2019 P Cr https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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T.H. Khan for Appellants (in Criminal Appeal No. 65 of 2016).
Wajahat Ghaznavi and Abdul Karim Malghani for Prosecutor-General for the State (in all appeals).
Date of hearing: 11th July, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---This judgment will dispose of Criminal Appeals Nos. 38, 39, 44, 47,
50, 63 and 65 of 2016 in which common questions of law and facts are involved.
2. Briefly stated facts of the case are that on 27.02.2013 upon the report of complainant Saeed Ahmed
Gul, Section Officer (Schools-III) FIR No. 1-Q of 2013 was registered at PS Anti-Corruption Quetta
under sections 409, 420, 467, 468, 471, P.P.C. read with section 5(2) of the Act-II of 1947, with the
allegation of making fake and bogus appointments of thirty nine teachers in District Pishin/Killa
Abdullah by the Ex-District Education Officer Pishin namely Abdul Rasheed Tareen (appellant in
Criminal Appeal No. 50 of 2016) and Deputy District Education Officer Pishin namely Mulazim Hussain
(appellant in Criminal Appeal No. 65 of 2016).
After completion of the investigation, the challan was submitted before the learned Special Judge
Anti-Corruption Quetta ("trial court"). After a full dressed trial, the trial court vide judgment dated
17.05.2016 ("impugned judgment") convicted and sentenced the appellants in the following terms:
"Under section 409, P.P.C. to suffer RI for eight years each and fine of Rs. 75,000/- each, in default to
further undergo for two months SI each."
"Under section 420, P.P.C. to suffer RI for five years each and fine of Rs.50,000.- each, in default to
further undergo for two months' SI each.
Under section 467, P.P.C. to suffer RI for eight years each and fine of Rs.50,000/- each, in default to
further undergo for two months' SI each.
Under section 468, P.P.C. to suffer RI for five years each and fine of Rs.50,000/- each, in default to
further undergo for two months' SI each.
Under section 471, P.P.C. to suffer RI for five years and fine of Rs.50,000/- each, in default to further
undergo for one month's SI each.
Under section 5(2) of Act-II of 1947 and sentenced to suffer RI for four years each with fine of Rs.
50,000/- each in default to further suffer SI for two months' each including recovery of
Rs.87,36,612/- which shall be recoverable from movable and immovable properties owned by the
accused persons severally or jointly. Process as provided under section 386, Cr.P.C. be issued to
District Officer Revenue Quetta, Pishin, Killa Abdullah for attachment of properties owned by the
accused persons and its sale by way of auction to satisfy the sentence of fine. If the amount of
fine in whole is not recoverable from the properties owned by the accused, then they will further
suffer RI for one year each.
All the substantive sentences recorded against the accused shall run concurrently. Benefit of section
382-B, Cr.P.C. is extended in the favour of accused."
Being aggrieved from the impugned judgment passed by the trial court the appellants have filed these
appeals.
3. I have heard the arguments advanced by learned counsel for the appellants and learned counsel
appearing on behalf of the state, besides minutely perusing the record of the case.
4. At the outset, it may be observed here that statement of the appellants in terms of section 342,
Cr.P.C. had not been recorded in accordance with its spirit and as such departure there from is not
permissible. The use of word "shall" in latter part of subsection (1) of section 342, Cr.P.C. indicates that2019 P Cr https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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the examination of the accused is mandatory and not discretionary. If after conclusion of trial it is found
by the trial Court that any circumstances appearing in evidence against the accused is lightly helpful
towards his conviction then the court would not be competent to take the same in account without
questioning him on that point so that accused may be able to explain his position properly. In para 20 of
the impugned judgment the trial court relied on the alleged inquiry report of District Education Officer
(DEO) Pishin namely Syed Arif Shah. In paras Nos. 21 and 22 of the impugned judgment the trial court
relied on statements of the absconding accused, which were allegedly recorded by the Director Education
Department Balochistan upon directions of Service Tribunal, Balochistan during inquiry. In paras Nos.
23, 24 and 25 the trial court relied upon the specimen signatures of the accused and HR Forms. But the
trial court did not put any question to the appellants/accused in respect of the above while recording their
statements under section 342, Cr.P.C.
5. It is worthwhile to mention here that prosecution's case is that of forgery and misappropriation of
the amounts allegedly committed by the appellants//accused, which is based on ocular as well as
documentary evidence. The appellants were confronted with documentary evidence jointly, which
confrontation shows that all the documentary evidence available on record was confronted to each of the
appellants/accused irrespective of the fact, whether the documents were related to that accused or not. It
is clear from record that the statement of accused was recorded under section 342, Cr.P.C. by the learned
trial Court in a very stereotype manner. Relevant and very important incriminating pieces of evidence
have not been put to the accused for their explanation/reply. Perusal of the statement of accused under
section 342, Cr.P.C. further reveals that all the incriminating pieces of evidence brought on record were
not put to the accused, when their statements were recorded under section 342, Cr.P.C., enabling them to
explain and reply the same, whereas the trial Court used such piece of evidence for convicting the
accused. Under the law, if any piece of evidence is not put to the accused in his statement recorded under
section 342, Cr.P.C, the same cannot be used for his conviction. Exactly same is the position in the cases
in hand. Reliance is also placed on the case of Muhammad Shah v. The State reported as 2010 SCMR
1009, in which the Hon'ble Supreme Court has held as under:
"11. It is not out of place to mention here that both the Courts below have relied upon the suggestion
of the appellant made to the witnesses in the cross-examination for convicting him thereby using
the evidence available on the record against him. It is important to note that all incriminating
pieces of evidence, available on the record, are required to be put to the accused, as provided
under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused
to explain any circumstances appearing in evidence against him" which clearly demonstrate that
not only the circumstances appearing in the examination-in-chief are put to the accused but the
circumstances appearing in cross-examination or re-examination are also required to be put to the
accused, if they are against him, because the evidence means examination-in-chief and re-
examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat
Order, 1984. The perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the
portion of the evidence which appeared in the cross-examination was not put to the accused in his
statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when
the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the
accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for
his conviction. In this case both the Courts below without realizing the legal position not only
used the above portion of the evidence against him, but also convicted him on such piece of
evidence, which cannot be sustained".
Reliance can also be placed on the case of Muhammad Nawaz and others v. The State and others
reported as 2016 SCMR 267, wherein the Hon'ble apex Court has observed as under:--
"6(c) ... There is yet another aspect of the case. While examining the appellants under section 342,
Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now
that a piece of evidence not put to an accused during his/her examination under section 342, Code
of Criminal Procedure, could not be used against him/her for maintaining conviction and2019 P Cr https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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sentence".
In another case of Qaddan and others v. The State reported as 2017 SCMR 148, the Hon'ble apex
Court has held as follows:
"3. Apart from that the motive set up by the prosecution had never been put to the present appellants
at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a
piece of evidence not put to an accused person at the time of recording of his statement under
section 342, Cr.P.C. cannot be considered against him."
6. Moreover, it has been further observed from the perusal of the record that statements under section
342, Cr.P.C. of the appellants have not been recorded in accordance with second part of section 364,
Cr.P.C. which provides that Judge 'shall' certify under his own hand that the examination was taken in his
presence and hearing and that the record contains a full and true account of the statement made by the
accused. No doubt the statements of the appellants recorded under section 342, Cr.P.C. are available on
record but the certificates appended thereto are not in the handwriting of the Presiding Officer. It is well
settled that where an act was provided to be done in a particular manner it had to be done in that manner
and if not done, the same could not be lawful.
7. In view of what has been observed herein above coupled with the dictum laid down by the Hon'ble
apex Court in the cases referred to herein above, I am of the considered opinion that the learned trial
Court while passing the judgment has committed illegality and violated the provisions of section 342,
Cr.P.C. Consequently, the judgment dated 15.07.2010 passed by the learned trial Court is hereby set-
aside. Case is remanded to the trial Court with direction to record statement of the appellants/accused
under section 342, Cr.P.C. afresh by putting all incriminating pieces of evidence. A fair opportunity shall
be provided to the appellants/accused for explanation/reply as well as to the prosecution. Thereafter, the
learned trial Court shall pass the judgment afresh within a month after hearing both the parties, in
accordance with law.
It may be observed here that appellants/accused were on bail prior to announcement of judgment,
therefore, their enlargement on bail shall continue and the appellants/accused shall appear before the trial
court on 02.08.2019.
MH/65/Bal. Case remanded.
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