The Sindh High Court (SHC) has set aside the death sentence and life imprisonment of two convicts in a murder case and remanded back the case to the trial court for recording the statement of the accused under the law.
Javed Ali and Irshad were sentenced to death and life imprisonment respectively by a Sujawal additional district and sessions court for murdering a man and injuring a woman on July 14, 2022.
According to the prosecution, complainant Juman lodged an FIR at the Jhoke Sharif police station stating that he along with his son Akash and brother-in-law Sajan went to the house of his relative Javed Mangarhar for Eid gathering.
He alleged that Javed had arguments with his wife and inflicted hatchet blows upon his wife, Uzma, aged around 20 years and when his son Akash intervened in an attempt to rescue her, Javed’s brother Irshad caught hold of Akash, enabling Jawaid to inflict hatchet injuries on the back side of Akash’s head, as a result of which both Akash and Uzma became unconscious and Akash later died during treatment.
A counsel for the appellants submitted that at the time of recording the evidence and the statements of the appellants under the Section 342 of the Code of Criminal Procedure (CrPC), the material and incriminating circumstances appearing in the evidence were not put to the appellants.
He argued that it was a settled principle of law that any piece of evidence not put to an accused during his examination under the Section 342 of the CrPC could not legally be used against him.
He further submitted that in the present case, although the alleged crime weapon, i.e., a hatchet, was recovered from accused Javed and the same was sent to the office of the Sindh Forensic and Serology Laboratory, which reportedly returned a positive report, yet no question with regard to the said recovery or the forensic report was put to the accused Javed during his examination under the Section 342 of the CrPC.
He requested the high court that in view of the circumstances, the conviction and sentence awarded to the appellants be set aside and they be acquitted of the charge or case be remanded back for recording of their statements and put all incriminating pieces of evidence to the appellants.
A division bench of the high court comprising Justice Khadim Hussain Tunio and Justice Amjad Ali Sahito after hearing the arguments of the counsel observed that from the perusal of the record, it transpired that after framing of the charge and recording of the prosecution evidence, the prosecution closed its side, however, while recording the statements of the accused persons under the Section 342 of the CrPC, the material and incriminating questions emerging from the evidence were not put to the accused persons so as to seek their explanation.
The SHC observed that it was a well-settled principle of the law that if any piece of evidence was not put to an accused in his statement under the Section 342 of the CrPC, the same could not be used against him for the purpose of his conviction.
The bench set aside the conviction and sentences awarded to the appellants through the impugned judgment, and remanded the case to the trial court with a direction to record fresh statements of the accused persons under the Section 342 of the CrPC after putting to them all incriminating pieces of evidence brought on record so as to seek their explanation.
The high court ordered that after recording the statements of the appellants, the trial court shall pass a fresh judgment in accordance with the law after hearing the parties, preferably within a period of two months.
