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Criminal Appeal No. 86 of 1985 and Criminal Miscellaneous Appeal No. 842 of 1987, decided on 19th July, 1987.

‑‑‑Ss. 340(2) [substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985)] 342 & 537‑‑Interpretation and scope of subsection (2) of S. 340‑‑Evidence on oath by accused as required under subsection (2) of S. 340 to disprove charge against him or his co‑accused is an integral part of trial of the case‑‑Accused has no option in giving evidence himself on oath‑‑Trial is incomplete without such evidence‑‑Duty cast upon Trial Court to call upon accused to give evidence on oath‑‑Mere fact that a question was put to accused while being examined under S. 342, Cr.P.C. whether he wished to file any statement in writing on oath is not due compliance with provision of S. 340(2), Cr.P. C.‑‑Where Trial Court failed to call upon accused under S. 340(2), Cr.P.C. to give evidence on oath, trial, held, was vitiated and illegality committed was not curable under S. 537, Cr.P.C.‑‑Case remanded for re‑trial from stage where illegality was committed.

P L D 1985 Lah. 34 and Abdul Malik v. State P 'L D 1985 F.S.C. 293 ref.

Khalid M. Ishaque for Appellant.

Nooruddin Sarki for the State.

Dates of hearing: 1st and 5th July, 1987.

Jan Muhammad has been convicted by the learned Sessions Judge, Karachi, vide his judgment dated 28‑5‑1985 for offences under sections 304, 308, 427, P.P.C. and sentenced to ten years' R.I. and a fine of Rs.10,000 in default whereof to suffer R.I. for two years, 2 years' R.I. and one year R.I. and a fine of Rs.1,000 in default whereof to suffer further R.I. for six months respectively; while Asghar Baig, his co‑accused, has been acquitted. A certain amount of fine, if realised, has been ordered to be paid to the parents of deceased, the injured girls as well as the owner of the damaged wagon as compensation.

2. The prosecution case is that on 15th .April, 1985 at about 8‑45 a.m. at Chowrangi No.1, Nawab Siddiq Ali Khan Road, Nazimabad, the appellant while driving Wagon No.805‑220 of route X‑3 knocked down three college‑going girls named Bushra‑ Zaidi, Najma Zaidi and Uzma Mukhtar, who were crossing Nawab Siddiq Ali Khan Road at Chowrangi No.1, Nazimabad, for going to Sir Syed Girls College and then dashed against Wagon No.811‑516 of route Z‑3 which was standing at the Chowrangi No.1 crossing and was being driven by Asghar Baig, Driver. Ali the three girls sustained injuries and were immediately taken to Abbasi Shaheed Hospital where they were examined by Dr. Munawar Ahmed P.W.5. Bushra Zaidi succumbed to her injuries. The incident was witnessed by Head Constable Sarfraz Khan and Police Constable Rehmat Ali and Matiullah of Traffic Police. One Nasiruddin a fruit‑seller also witnessed the incident. Both the above‑named drivers of the wagons were taken into custody at the spot by the Traffic Police. They were later on handed over to A.S.I. Nazar Hussain, who came at the Wardat. He took them to Gul Bahar Police Station and also got removed both .the wagons to the said police station. The two accused and their wagons were handed over in the custody of Sub‑Inspector Subs. Khan who was duty Officer at the said police station. S.I.P. Subs Khan received a message that students of Sir Syed 'Girls College had .come at Chowrangi No.1 and blocked the road. S.I.P. Subs Khan went to the place of incident where he met S.H.O. Sakhawat Hussain who was already present there. He then made the site inspection and visited hospital and then registered a case on behalf of the State against the said two accused for offences under sections 304, 337, 427, P.P.C. at the police station of Gul Bahar at. about mid‑day. He conducted the investigation and then challaned the appellant and Asghar Baig, the drivers of 805‑220 and 811‑510 respectively.

3. The accused did not plead guilty to the charge. At the trial the prosecution examined P.W. Rahmat Ali, P.C. (Exh.5), Sarfraz Khan H.C. (Exh.8), Nasiruddin (Exh.12), Nazar Hussain (Exh.13), Dr. Munawar Ahmed (Exh.14), Afzal Hussain (Exh.20), Raja Arshad (Exh.23), Uzma Mukhtar, injured (Exh.26), Dr. Asghar Moeed (Exh.22) and Suba Khan S.I.P. (Exh.29), P.Ws. Talat Siddiqui, Mazhar Zaidi, P.C. Mateullah, P.C. Abbas Khan, Nazir Ahmed, P.C. Mian Khan, were given up as being unnecessary, while P.W. Irshad was given up for having been won over by the defence. The accused were examined under section 342, Cr.P.C. but they denied all the allegations and their involvement in the accident. The appellant did not lead any evidence in his defence; whereas co‑accused Asghar Baig examined one Arshad Ali (Exh.41) in his defence.

4. After examining the evidence on record the trial Judge came to the conclusion that the appellant had committed various offences and he, therefore, convicted and sentenced the appellant as mentioned above. While considering the case of the co‑accused Asghar Baig he held that he was not guilty of the charge and, consequently, he acquitted him.

5. This appeal came up for hearing before my learned brother Syed Ally Madad Shah, J. on 21st and 24th October, 1985, when he, after hearing the arguments of the counsel for the parties, reserved the judgment. On 10‑11‑1985 his Lordship passed an order that the ground urged by the learned counsel for the appellant to the effect that the .failure of the trial Judge to examine the appellant on oath, under the provisions of section 340(2), Cr.P.C. had caused prejudiced to the appellant in making his defence. In support of his case the learned counsel for the appellant placed reliance on a decision of Lahore High Court reported in P L D 1985 Lahore 34. My learned brother, however, later on, noted that there was a decision of the Federal Shariat Court reported as Abdul Malik v. State P L D 1985 F. S. C . 293 where a different view appeared to have been enunciated on the import and scope of section 340(2), Cr.P.C. He, therefore, in the interest of justice issued notices to the counsel for the parties to express their views on the aforesaid question on interpretation and scope of section 340(2), Cr.P.C. After hearing the arguments of the advocates for the parties my learned brother was pleased to recommend to his Lordship the Chief Justice that the following question may be referred to a larger Bench for decision in view of different interpretation enunciated by the Courts mentioned above.

"Whether section 340(2) of the Code of Criminal Procedure does or does not cast duty upon a criminal Court to proceed to record evidence on oath of the accused as envisaged thereunder."

The case was referred to a Division Bench for its opinion on the above question. The Division Bench vide judgment dated 12‑3‑1987 expressed its .opinion as under:‑

"...The evidence on oath by the accused required to be given under subsection (2) of the section 340 contained in Chapter XXV of the Code of Criminal Procedure in disproof of the charges or allegations made against him or the co‑accused charged or tried together with him at the same trial is, therefore, integral part of the trial of the cases. Of course, the accused has option of leading evidence in defence under Chapter XX or, as the case may be, under Chapter XXII‑A of the Code of Criminal Procedure but he has no option in giving evidence himself on oath as enjoined under subsection (2) of section 340 and, therefore duty is cast upon the trial Court to call upon him to give evidence on oath and unless that is done, the trial of the case is not complete. We are, therefore, of the opinion that the obligation of giving evidence on oath cast on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial Court to call upon the accused to give evidence on oath and record his evidence unless he declined to do so. Accordingly, answer to the question referred for the opinion of the Division Bench is in affirmative."

The appeal has thus, come up for hearing before me. It may here also be noted that in the meanwhile on 12‑5‑1987 an application under section 426, Cr.P.C. (C.M.A. 842 of 1987) has been presented on behalf of the appellant praying for his being enlarged on bail during the pendency of appeal on the grounds mentioned therein. This bail application is also fixed for hearing alongwith the main appeal.

6. Mr. Khalid Ishaq, learned counsel for the appellant, however, assailed the conviction and sentence of the appellant on various grounds. He urged with vehemence that the evidence led by the prosecution does not establish the charge under section 304 against the appellant. In his submission, the prosecution evidence does not warrant a finding that the appellant was responsible for injuring the three girls by rash and negligent driving. Learned counsel argued that the name of P.W. Nasiruddin does not appear in the F.I.R. although he was available to the Investigating Officer Suba Khan before recording the F . I . R . P . W . Nasiruddin, according to him, is a false and set up witness. After extensively reading the evidence of the prosecution witnesses, Mr. Khalid Ishaq, vociferously argued that P.W. Rahmat Ali, P.C. Sarfraz Khan, H.C. were false witnesses. He pointed out the various contradictions appearing in the depositions of the prosecution witnesses and emphasised that the considerations being major, vital and material, the benefit of the same should have been given to the appellant which the learned trial Court has not done. It has, thus, the counsel so urged, resulted in serious miscarriage of justice. Lastly, the counsel submitted that the learned trial Court has wrongly framed the charge under section 304, inasmuch as the facts alleged by the prosecution did not constitute offence punishable under section 304. In view of the fact that the evidence brought on record did not establish as to what precise act of negligence was committed by the appellant, it was not even a fit case for framing a charge under section 304‑A, P.P.C. The mere factum of accident was by itself not sufficient for the trial of the appellant even under the latter section. The counsel also submitted that the prosecution failed to get the autopsy of the dead body of the deceased Bushra Zaidi held and in the absence of the post‑mortem report about cause of her death, the benefit of these lapse should have been extended to the appellant. The learned counsel also referred to several reported decisions to contend that in cases falling under section 340‑A even if the offence is proved then too the sentence ranging from six months to 3 years is awarded and hence, the counsel urged with vehemence, the appellant having already remained in custody for over two years he is entitled to a lenient treatment. He also submitted that "Tazkia‑e‑Shahood" of the prosecution witnesses was not done as required under Articles 3 and 17 of the Qanun‑e‑Shahadat.

7. Mr. Nooruddin Sarki, the learned counsel appearing for the State, on the other hand, readily conceded that it was not the case falling under section 304, P.P.C. He, however, urged that the appellant is liable to be convicted and sentenced for the offence under section 304‑A, P.P.C. He also dealt with the evidence on record to show that the negligence and carelessness of the appellant was fully and satisfactorily proved. He submitted that during the examination of the appellant, a question was put to him as to whether he wished to file in Court any statement in writing on oath or affidavit and hence it was a due compliance of the provisions of section 340(2), Cr.P.C. and hence there was no good reason for remanding the case to the trial Court.

8. In view of the order I propose to pass in this case I do not deem it necessary to deal with the various contentions concerning the merits of the case raised by the learned counsel for the parties. The judgment of the Division Bench on the above‑noted question of law, clearly lays down that the failure on the part of the learned trial Judge to discharge its legal obligation u/s 340(2), Cr.P.C. to call upon the accused to give evidence on oath and to record his evidence, unless declines to do so, renders the trial incomplete. There is thus, no escape from the conclusion that the trial of the appellant was not concluded in accordance with law inasmuch as the learned trial Court did not do so as is evident from the judgment of the learned Single Judge whereby the matter was proposed to be placed before the D.B. for decision on the question formulated by him, as well as from the judgment of the D.B. referred to above. I do not, therefore, agree with the learned State counsel that the question put to the accused while examining him under section 342, Cr.P.C. to which he has made a reference, was a due compliance of the provisions of section 340(2), Cr.P.C. Since the above illegality committed by the trial Court cannot be cured under section 537, Cr.P.C. I, therefore, deem it necessary to set aside the impugned judgment and remand the case to the trial Court for retrial from the stage the above‑noted illegally was committed. He should now proceed according to law and in the light of the judgment of the Division Bench referred to above, and dispose of the case at an early date. The appellant will be at liberty to raise all or any of the above‑noted contentions made on his behalf, before the trial Court which will give due consideration to them, if raised.

9. In view of the above order I am not called upon to consider the bail application (C.M.A. 842 of 1987), wherein a request made is that the appellant may be enlarged on bail during the pendency of the appeal. It is accordingly dismissed.

K . B.A. /J‑27/ K Retrial ordered

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