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Criminal Procedure Code (V of 1898), Ss. 342, 350 and 537‑Examination of accused ‑ in de novo trial‑Accused only questioned as to whether they wanted to add anything to their previous statement‑Irregularity curable under S. 537, Cr. P. C., in absence of prejudice‑Examination of accused thorough before conclusion of prosecution evidence‑Repetition of questions not necessary after conclusion of such evidence.

The accused were examined after evidence of two prosecution witnesses had been' recorded. A charge was framed and the P. W's. examined were re‑cross‑examined by the accused. The trying Magistrate at this stage was succeeded by another Magistrate who commenced proceedings de novo, leaving out the medical witness at the request of the accused. At the conclusion of prosecution evidence, the Magistrate asked the accused if they wanted to add anything to their previous statements.

Held, that it was not open to the succeeding Magistrate to content himself with the statements of the accused persons taken by his predecessor, especially when the accused persons had asked for a de novo trial.

Omission to examine the accused offended not only against the general principle of law that an accused should be given an opportunity to explain the evidence against him but also against the statutory provisions of section 342 Cr. P. C.

Nevertheless every omission or irregularity in the exami nation of an accused person does not vitiate the trial because section 537 Cr. P, C. cures such omission or irregularity in the absence of prejudice.

The evidence recorded by the succeeding Magistrate in this case did not disclose any circumstances which were not on the record when his predecessor had examined the accused under section 342 Cr. P. C. and as the examination was thorough no question of prejudice arose from the omission of the succeeding Magistrate to examine the accused.

If the accused had been asked all material questions under the first part of subsection (1) of section 342 before the prosecution evidence is concluded, the legislature does not intend that the Court should repeat all those questions when it examines the accused under the second part of subsection (1) of section 342.

Akhtar Mohammad v. Emperor A I R 1927 Lah. 720, Shammun v. Crown P L D 1952 Lah. 374, Ali Shan and others v. The Crown P L D 1953 Lah. 14 ref.

Held also that under the first part the Court may question the accused either before the prosecution evidence has concluded or even after he is called upon to produce his defence but under the second part the examination has to take place after the conclusion of the prosecution evidence.

Ghulam Abbas Jafri for Petitioners.

Shameem Hussain Qadri for the Advocate‑General for Respondent.

Mr. Ghulam Abbas, Magistrate of the First Class with powers under section 30 of the Code of Criminal Procedure at Sargodha, sentenced Muhammad Hussain Shah and Ali Hussain Shah to one year's rigorous imprisonment each under section 326/34 of the P. P. C. and to a similar term of imprisonment under section 325/34 P. P. C. They presented a joint appeal, which was dismissed by Mr. M. A. Latif, Sessions Judge, Sargodha against whose order the present petition for revision has been put in.

The occurrence, out of which the case arose, took place on the 20th of August 1953 at rotiwela, and resulted in Mahbub Hussain, Mahla and Gull Muhammad receiving injuries. One of the injuries on the person of Mahbub Hussain which was caused with a sharp‑edged weapon was grievous in nature as was one of those caused to Gull Muhammad with a blunt weapon which resulted in the fracture of his nose, and it was because of these two injuries that the convictions were under sections 326 and 325 P. P. C.

The case was in the first instance heard by Mr. Muhammad Bashir, Magistrate Sargodha, who, after recording the state ments of Dr. Muhammad Sharif (P. W. 1), Mahbub Hussain (P. W. 2) and of the two accused persons, framed charges against both of them. Both the witnesses examined before the framing of the charge were further cross‑examined under section 256 of the Code of Criminal Procedure after which the case was taken up on the 13th of April 1954 by Mr. Ghulam Abbas, who, while taking up the case, enquired from the accused persons if they wanted to have a de novo trial, to which they replied in the affirmative, adding that they did not want Dr. Muhammad Sharif to be summoned again. Mr. Ghulam Abbas proceeded with the trial and when the prosecution evidence had concluded asked the accused persons if they wanted to add anything to their previous statements, to which they replied in the negative. Three witnesses were produced in defence and the trial concluded with the result already indicated.

Before dealing with the merits it appears necessary to dispose of the contention of the learned counsel for the petitioners on a point of law. He contended that as the Magistrate who convicted the petitioners did not question them in the manner contemplated by section 342 of the Code of Criminal Procedure, no conviction could have been recorded, because according to him it was incumbent on the Magistrate who passed the order of conviction to give an opportunity to the accused persons to explain the circum stances appearing against them in the evidence produced by the prosecution. He also argued that even if the examina tion of the accused by Mr. Muhammad Bashir be deemed to be an examination by Mr. Ghulam Abbas who passed the order of conviction, then even section 342 of the Code of Criminal Procedure, was not complied with because the latter Magistrate had not, at the conclusion of the trial, questioned the accused persons generally on the case in order to give them an opportunity to explain the circum stances appearing .in evidence against them. The part of section 342, which is material for the present case, is contained in subsection (l) which reads as follows;

For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of an inquire or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

Subsection (1) of section 342 of the Code of Criminal Procedure is divided into two parts, the first of which empowers the Court to ask an accused person questions at any stage of the inquiry or trial with a view to enable him to explain any circumstances appearing in evidence against him and the second which makes it the duty of the Court to ask questions with that object at the conclusion of the prosecution evidence and before the accused is called upon to produce his defence evidence if any. Under the first part the Court may question the accused either before the, prosecution evidence has concluded or even after he is called upon to produce his defence but under the second part the examination has to take place after the conclusion of the prosecution evidence.

Taking the first contention of the learned counsel for the petitioners it appears to me that it was no open to Mr. Ghulam Abbas to content himself with the statements of the accused persons taken by his predecessor especially when the accused persons had asked for a de novo trial. It is true that the predecessor of Mr. Ghulam Abbas had asked all material questions from the petitioners and the evidence which was recorded by Mr. Ghulam Abbas did not disclose against the accused persons any circumstances which had not been disclosed by the evidence recorded by his predecessor but as laid down in Akhtat Muhammad v. Emperor (A I R 1927 Lab. 720) the omission of Mr. Ghulam Abbas to examine the accused persons offended not only against the general principle of law that a person tried for an offence should be given by the tribunal trying him an opportunity to explain the evidence against him but also against the statutory provisions contained in section 342 of the Code of Criminal Procedure. The learned single Judge who decided the case Reported in A I R 1927 Lah. 720 ordered the rehearing of the case from the stage at which the accused should have been examined and the learned counsel for the petitioner urged that I should follow the same course. If the omission ref Mr. Ghulam Abbas in the present case is an irregularity which is incurable I will have no option but to order a rehearing from the stage at which the irregularity occurred but if the irregularity is curable under section 537 of the Code of Criminal Procedure a rehearing of the case will not be necessary unless I come to the conclusion that the petitioners had been prejudiced because of the irregularity.

I am of the view that the irregularity under consideration is curable under section 5,57 of the Code of Criminal Procedure as one of the omissions contemplated by clause (a) of that section and in this view I am supported by two Division Bench decisions of this Court one Shammun v. Crown, (P L D 1952 Lah.374) and the second Ali Shan and others v. The Crown (P L P 1953 Lah. 14), in both of which it was held that every omission or irregularity in the examination of an accused person does not vitiate the trial because section 537 of the Code of Criminal Procedure is applicable to such omission and irregularity. As mentioned already, the evidence recorded by Mr. Ghulam Abbas did not disclose any circumstances which were not on the record when his predecessor examined the petitioners under section 342 of the Code of Criminal Procedure and as the examination was thorough no question of prejudice having resulted from the omission of Mr. Ghulam Abbas to examine the petitioners arises. The attention of the petitioners has been drawn by Mr. Ghulam Abbas to their former statements and they were asked if they wanted to add to them to which they replied in the negative. Moreover it is laid down in section 537 of the Code of Criminal Procedure that in determining whether any error, omission or irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. It is significant in this connection that in the grounds of appeal before the Sessions judge no objection was taken to the omission of Mr. Ghulam Abbas to comply with the provisions of section 342 of the Code of Criminal Procedure.

I will now deal with the second contention of the learned counsel for the petitioners, namely, that even if the examina tion of the accused persons by .the predecessor of Mr. Ghulam Abbas be treated to be their examination by Mr. Ghlum Abbas himself, it was the duty of Mr. Ghulam Abbas to question the accused persons generally on the case with a view to enabling them to explain the circumstances appearing in the evidence against them. The learned counsel maintained that even if all, material questions are asked in an examination of an accused person before the conclusion of the whole of the prosecution evidence, it is the duty of the Court holding the inquiry or trial to ask all those questions over again because the second part of subsection (1) of section 342 of the Code of Criminal Procedure is mandatory. In his contention that the second part of subsection (1) of section 342 of the Code of Criminal Procedure is mandatory the learned counsel is on firm ground, but it appears to me that if all material questions have been asked from the accused person before the prosecution evidence is concluded the legislature could not have intended that the presiding officer of the Court was to E repeat all those questions when he examines the accused person under the second. part of subsection (1) of section 342 of the Code of Criminal Procedure. The object of the second part of subsection (1) of section 342 of the Code of Criminal Procedure is that an accused person should be given an opportunity to explain the prosecution evidence which appears to the tribunal trying him to point to his guilt and if the necessary opportunity has already been given to the accused person I cannot see why it should be given over again.

On merits the learned counsel for the petitioners urged that the case against his clients was false and based on enmity. He could, however, point to no circumstance in support of this contention. Two of the injured persons received one grievous injury each, one with a sharp‑edged weapon and the other with a blunt weapon and I am not prepared to believe that anyone but 'the real culprits had been named as the assailants.

It was then urged by the learned counsel for the petitioners that in any case the application of section 34 of the Pakistan Penal Code was not justified because the evidence had not disclosed that the two petitioners were acting in concert when they attacked members of the other party. There is some force in this contention because though the evidence produced in Court would show that the attack was delivered in furtherance of the common intention of both the petitioners it appears from the first information report that Ali Hussain Shah petitioner, who is alleged to have caused the grievous injury with a blunt weapon, came on the scene when Mahla, one of the injured persons was holding Muhammad Hussain Shah who had caused an injury to Mahboob Hussain Shah (P. W. 2). The recital in the first information report would make it clear that each peti tioner was liable for his individual act and section 34 of the Pakistan Penal Code was not applicable. It is proved that Muhammad Hussain Shah accused caused a grievous injury with a spear to Mahboob Hussain Shah and his conviction under section 326 P. P. C, was therefore, proper. He should not, however, have been convicted under section 325 P. P. C. because in view of the contents of the first information report it was not safe to hold that the grievous injury with a blunt weapon caused by Ali Hussain Shah was caused in furtherance of the common intention of both the petitioners. I would, therefore, accept the petition of Muhammad Hussain Shah to the extent of acquitting him of the charge under section 325/34 of the Pakistan Penal Code and setting aside his sentence for that offence.

Coming now to the case of Ali Hussain Shah I have already indicated that his conviction for the grievous hurt caused by Muhammad Hussain Shah to Mahbub Hussain Shah was not justified. It is proved that he came to the scene of the occurrence on seeing that his uncle Muhammad Hussain Shah was in the grip of Mahla and though that fact may have afforded him some justification for causing injuries to Mahla he had no right to cause a grievous injury to Gull Muhammad by fracturing his nose. The conviction of Ali Hussain Shah under section 325 of the Pakistan Penal Code is maintained but his petition is accepted to this extent that his conviction and sentence under section 326/34 P. P. C. are set aside. The result, therefore, is that the conviction and sentence of Muhammad Hussain Shah under section 325/34 is set aside as is the conviction and sentence of Ali Hussain Shah under section 326/34 but the sentence of each of them for the other offence shall stand.

A. H. Petition partly accepted.

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