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Criminal Revision No. 573 of 1952 decided on 17^th March, 1953.

Criminal Procedure Code (h of 1898), S. 342‑Circum stances appearing in prosecution evidence against the accused not, put to him‑Case remanded.

The petitioner was examined under section 342 first, on the 5th January, 195,2, and secondly, on the 29th January, 1952. In his examination on the 5th January, 1952, the first question which was asked of him was : "You have heard the evidence of the prosecution witnesses. Why should you not be punished " His answer was : "I am innocent". The next question was : "Were you convicted and sentenced for 8 years previously " His answer was : " les, I was". On the 29th January, 1952, the only question which was asked of him was : "You heard the examination and cross examination of the prosecution witnesses. What is your defence His answer was : "I am innocent".

Held : these questions and answers are not an adequate compliance with the mandatory provisions of section 342 of the Code of Criminal Procedure.

Case was remanded for a proper examination of the accused and disposal according to law.

Md. Nurul Huq Chowdhury, for Petitioner.

No one for the Crown.

‑In this case a Rule was issued on the District Magistrate of Tippera at the instance of one Mofizuddin. The petitioner was placed on trial before Mr. G. M. Qadri, a Magistrate of the 1st Class of Comilla and was convicted under section 411 of the Pakistan Penal Code on the 21st May, 1952. He was sentenced to rigorous imprisonment for eight months and also to a fine of Rs. 100 in default, to a further term bf rigorous imprisonment for two months. In view of his previous conviction, an order was passed under section 565 of the Code of Criminal Procedure for a period of two years from the date of the expiry of his sentence. The petitioner's appeal to the Sessions judge was dismissed on the 30th July, 1952, and he thereafter moved this Court in the exercise of the Criminal Revisional Jurisdiction.

The petitioner has been represented before us by Mr. Nurul Huq Chowdhury, No one has appeared in opposi tion to the rule.

On a scrutiny of the record, we find that when the petitioner moved the Sessions judge against his conviction and sentence, he took it as one of the grounds in support of the appeal that the provisions of section 342 of the Code of Criminal Procedure had not been complied with. In his petition before us he also claims that the examination of the petitioner under section 342 was not in accordance with the provisions of law and the petitioner has been highly prejudiced thereby.

It appears from the record that the petitioner was examined under section 3.42 first, on' the 5th January, 1952 and secondly, on the 29th January, 1952. In his examination on the 5th January, 1952 the first question which was asked of him was : "You have heard the evidence of the prosecution witnesses. Why should you not be punished " His answer was : "I am innocent". The next question was : "Were,q you convicted and sentenced for 8 years previously " His answer was : "Yes, I was". On the 29th January, 1952, the only question which was asked of him was‑: "You heard the. examination and cross‑examination of the prosecution witesses. What is your defence His answer was : "I am innocent".

We cannot hold that these questions and answers are an adequate compliance with the mandatory provisions of s section 342 of the Code of Criminal Procedure and we would draw the attention of the learned Magistrate to the observa tions of their Lordships of the Federal Court in the cases of ‑‑Rahim Bakhsh v. Crown (4 D L R 53 = P L D 1952 F C 1) and Aminul Hoque v. The Crown (57 C W N 5 D R I--‑P L R 1 Dacca 863= P L D 1952 F C 63). The learned Magistrate must follow the directions given therein when he re‑examines the petitioner under section 342 of the Code.

As we are sending the case back in order that the pro visions of section 342 of the Code may be complied with, we would draw the attention of the learned Magistrate to ground No. 4 of the petition presented to this Court. "For that the non‑production and non‑examination of the Investigating Officer, Mr. Md Ismail who is a material witness has seriously prejudiced the petitioner inasmuch as the petitioner could not get advantage of his evidence as well as the statement recorded by him of witnesses during investigation under section 161, Criminal P. C".

The rule is accordingly made, absolute, the conviction and sentence and consequential order under section 565 of the Code of Criminal Procedure are set aside. We send the case back again to the learned Magistrate with the direction that he shall procure the attendance of the Investigating Officer, Mr. Md. Ismail and examine him as a pro secution witness and thereafter he shall examine the accused petitioner under section 342 of the Code of Criminal Procedure with a special reference to the directions of their Lordships of the Federal Court in the two cases of which we have made mention. After a proper examination of the accused under section 342, he will examine defence witnesses afresh, if any, are produced by the accused petitioner and thereafter dispose of the case according to law. The petitioner may remain on bail pending the disposal of the case against him.

ISPHANI.J.---I agree

A.H. Rule made absolute.

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