Find a Lawyer

Criminal Reference No. 177 of 1952, decided on 5th February 1953.

Criminal Procedure Code (Y of 1898), Ss. 253 & 342 ‑ Accused can be examined only if there is some evidence against him‑Conviction on doctor's statement and plea of guilty of accused, held, illegal.

If no evidence has been produced by the prosecution and consequently no circumstance has appeared in the evidence against the accused person, the Magistrate cannot ask the accused to make a statement.

The Magistrate only examined the doctor and from his evidence no circumstance appeared against the accused that the Magistrate should have recorded their statements, or asked them to explain anything.

Held, that the procedure adopted was illegal. Conviction of accused was therefore quashed and re‑trial ordered:

Advocate‑General for the Crown.

Mohtad‑ullah Khan for Respondents.

‑Shamroz, son of Farid aged about 35 years, Sar Zaman, son of Muhammad aged about 33 years, Amirullah, son of Naim aged about 32 years and Pordil, son of Karim aged about 30 years, were sent up by the Police to stand their trial under section 324/34 of the Pakistan Penal Code for having on the 7th of July 1952, at Ismailia village in furtherance of their common intention caused simple hurt with sharp‑edged and pointed weapons on the person of one Qudratullah.

The learned Magistrate recorded the statement of Dr. Muddasir Khan alone as a P. W. who stated that on exami nation he had found on the 8th of July 1952, injuries on tire person of Qudratullah, Said Shah, Said Ghafur and Amirullah. He then examined the accused who admitted having caused injuries to Qudratullah and threw themselves at the mercy of the Court.

On this evidence the learned Magistrate framed the charge to which the accused pleaded guilty. No opportunity was given to the accused to recall any evidence for cross‑examination. They, however, had made a statement that they were not willing to produce any defence.

The learned Magistrate convicted all the accused under section 324/34 of the Pakistan Penal Code and sentenced them to pay a fine of Rs. 5 each or in default to undergo one week's rigorous imprisonment.

The learned District Magistrate, Mardan has forwarded the case on to this Court with the recommendation that the sentence awarded to the accused be enhanced.

The offence under section 324, Pakistan Penal Code, being punishable with an imprisonment of either description for three years or fine or both is a warrant case within the meaning of section 4 (1) (w) of the Criminal Procedure Code. The procedure for the trial of a warrant case by a Magistrate is given in Chapter XXI of the above Code. It is to the effect that when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. Under section 253 of the Criminal Procedure Code, if upon taking all the evidence produced by the prosecution and making such examination of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. If, however, when such evidence and examination, having been taken and made, the Magistrate is of the opinion that there is the ground for presuming that accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion can be adequately punished by him, he shall frame a charge against the accused.

An accused person is examined, by a Magistrate, under section 342 of the Criminal Procedure Code, only for the purpose of enabling him to explain any circumstance appearing in evidence against him. For that purpose the Magistrate may put such questions to him as he considers necessary. The object of the section obviously is o make it compulsory for a Magistrate to give an opportunity to an accused person to explain away any circumstance appearing against him. If, however, no evidence has been produced by the prosecution and consequently no circumstance has appeared in the evidence against the accused person, one cannot understand how could a Magistrate ask an accused to make a statement and for what purpose.

In the case before me the learned Magistrate only examined the doctor and from his evidence no circumstance appeared against the accused that the Magistrate should have recorded their statements, or ask them to explain anything.

I am consequently of the opinion and the learned Advocate -General agrees with me that the procedure adopted by the Magistrate is illegal and absolutely wrong. He should have first recorded the prosecution evidence and examined the accused only when such evidence established something against the accused. If on the other hand the prosecution does not disclose any circums tance that the accused should stand in need of explanation, the learned Magistrate should discharge them forthwith.

I am consequently compelled to quash the proceedings, set aside the convictions and the sentences of the accused and remand the case to the trial Magistrate for trial de novo.

Order announced.

A. S. Retrial ordered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.