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Criminal Appeal No. 666 of 1959, decided on 1st April 1960.
S. 342 read with S. 287‑Omission of Sessions Court to question accused under S. 342 relying only on accused's statement before committal Court tendered under S 287‑Violation of mandatory provisions of S. 342 Conviction set aside‑Case remanded‑Criminal Procedure Code (V of 1898), S. 209‑Examination of accused‑Whether mandatory.
The Additional Sessions Judge put the following questions to, and elicited the following answers from, each of the accused:‑--
"Q. Whether on 29‑1‑1959 you made the statement (read out) before the Committing Magistrate
A. Yes.
Q. Whether you would like to say anything else
A. No.
Q. Would you produce defence
A. No.".
There was no question on the record to show that any questions were put to the accused to enable them to explain the circumstances proved against them.
Held, that the mere fact that the accused were asked whether they wished to say "anything else" is not a sufficient compliance with section 342 of the Code of Criminal Procedure in spite of the fact that there had been a complete and full questioning of the accused by the Committing Magistrate.
Once the statement of an accused person recorded by the Committing Magistrate is tendered under section 287, Cr. P. C. in the Court of Session it becomes part of the prosecution case. If the accused is asked: "You have heard your statement, what have you to say about it " it merely means that his attention has been drawn to a part of the prosecution case against him, and his attention remains undrawn to the evidence recorded by the Sessions Judge at the trial.
This is a complete disregard of the provisions of section 342 of the Code of Criminal Procedure, and it may be presumed that there was failure or miscarriage of justice.
Ordinarily in the Court of the Committing Magistrate the stage at which the examination of the accused becomes mandatory is not reached.
The High Court set aside convictions and sentences and remanded case for retrial from the stage of examination of accused.
Dwarkanath Varma and another v. Emperor A I R 1933 P C 124 ; Billukuri Kottaya v. Emperor A I R 1947 P C 67 ; Rahim Bakhsh v. Crown P L D 1952 F C 1 ; Aminul Haque v. Crown P L D 1952 F C 63 ; Abdus Salam Molla v. The Crown P L D 1955 F C 129 ; Munawar Ahmad v. The State P L D 1958 S C (Pak.) 300 ; Muhammad Ali v. Crown P L D 1950 Lah. 239 ; Abdul Wahab v. The Crown P L D 1955 F C 88 ; Muhammad Yakub v. The Crown P L D 1956 F C 143 ; Shammun (Shamman) v. Crown P L D 1952 Lah. 374 ; Ali Shan v. The Crown P L D 1953 Lah. 14; Zaheeruddin v. Emperor P L D 1947 P C 13 ; Muhammad Shai v. The Crown P L D 1954 Sind 141 ; Tara Singh v. The State A I R 1951 S C 441 ; Mosahib Kaka Chowdhury v. State of West Bengal P L D 1956 S C (Ind.) 303 ; Muhammad Yaqub v. The Crown P L D 1956 Lah. 174 ; Dinu v. Emperor 83 1 C 895 ; N. A. Subramania lyer v. King‑Emperor 28 I A 257 ; Ghula v. Emperor 1 P R 1918 ; Haji Muhammad Bakhsh v. Emperor A I R 1922 Lah. 45 ; Nanak Chand v. Crown A I R 1924 Lah. 734 ; Ghaza Ali v. Emperor A I R 1925 Lah. 288 ; Muhammad Sadiq v. Emperor A I R 1926 Lah. 51 ; Lachman Singh v. Emperor A I R 1926 Lah. 551 and Fazal Ahmad v. Emperor A I R 1926 Lah. 684 ref.
V. M. Abdul Rahman v. King‑Emperor A I R 1927 P C 144 distinguished.
Criminal case‑Remanded to same Additional Sessions Judge‑Judge directed to proceed from stage where illegality had occurred provided same set of assessors was available Trial de novo if same assessors were not available.
Riasat Ali Khan for Appellants.
M. B. Zaman, A. A.‑G. for Respondent.
Date of hearing : 1st March 1960.
Fazal, Muhammad Hussain and Allah Din were tried by Mr. Mohsin Tirmizy, Additional Sessions Judge, Gujrat under section 302/34 of the Pakistan Penal Code, the allegations against them being that on the night between the 28th and 29th of October 1958, at 9 p.m., they had, in furtherance of their common intention, murdered Fazil. The learned Additional Sessions Judge convicted them under section 302/34 of the Pakistan Penal Code and sentenced Fazal to death and Muhammad Husain and Allah Din to transportation for life each. The condemned person and the convicts have appealed to this Court against their convictions and sentences. The case is also before us under section 374 of the Code of Criminal Pro cedure. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.
2. This appeal has to be accepted on the short ground that the mandatory provisions of section 342 of the Code of Criminal Procedure have not been complied with. The learned Additional Sessions Judge put the following questions to, and elicited the following answers from, each of the accused :‑
Q. Whether on 29‑1‑1959 you made the statement (read out) before the Committing Magistrate
A. Yes.
Q. Whether you would like to say anything else
A. No.'s
Q. Would you produce defence
A. No."
There is no question on the record to show that any questions were put to the appellants to enable them to explain the circum stances proved against them. In my opinion, the mere fact that the appellants were asked whether they wished to say "anything else" is not a sufficient compliance with section 342 of the Code of Criminal Procedure. The learned Assistant Advocate‑General, submitted that in the committing Court there had been a complete and full questioning of the accused, but his submission, in my opinion, is beside the point. Section 209 of the Code of Criminal Procedure reads :‑
"(1) When the evidence referred to in section 208, subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(2) Nothing In this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
3. The statement of an accused recorded by the Committing Magistrate is tendered in evidence under section 287 of the Code of Criminal Procedure, which reads :‑
"The examination of the accused duly recorded by or before the Committing Magistrate shall be tendered by the prosecutor and read as evidence."
The statement so tendered and read as evidence has the same effect as any other evidence adduced before the Sessions Judge. Once it is tendered and read as evidence, it becomes a part of the prosecution case. It cannot, therefore, serve the purpose of the examination contemplated by section 342 of the Code of Criminal Procedure which section aims at an examination of the accused for the purposes of enabling him to explain any circumstances appearing in the evidence against him.
4. Section 342 (1) of the Code of Criminal Procedure reads :‑‑
"For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry 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."
It will be readily seen that the section is partly discretionary and partly obligatory. The first part, which is discretionary, provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of the trial, put such questions to him as it considers necessary. The second part, which is mandatory, provides that the Court shall for the purpose aforesaid question the accused generally on the case after the witnesses for the prosecution have been examined, and the accused is called upon for his defence. Now, the question arises when is such a stage reached in an inquiry under the provisions of Chapter XV III of the Code of Criminal Procedure. According to section 208, the Magistrate shall take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate. Then, according to section 209 when such evidence had been taken and the Magistrate has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, the matter is to proceed further. It will be seen that section 209, corresponds to the first part, i.e., discretionary part of subsection (1) of section 342. The fact that there is no mandatory provision in section 209 corresponding to the latter part of section 342, is an indication that in an inquiry in the Committing Magistrate's Court the stage at which the accused is called upon for his defence is not ordinarily reached. Section 210 of the Code of Criminal Procedure provides for the framing of a charge. Section 211 merely says that the accused shall be required to give in a list of persons wham he wishes to summon to give evidence at his trial, i.e., trial in the Court of Session. The Magistrate may, in his discretion, examine any of these witnesses under section 212, but at no stage of the inquiry is the accused called upon for his defence. On the contrary, under section 219 of the Code of Criminal Procedure even if the committing Magistrate summons and examines supplementary witnesses, such examination shall, if possible, be taken in the presence of the accused. Thus, it is apparent that ordinarily in the Court of the Committing Magistrate the stage at which the examination of the accused becomes mandatory is not reached. Obviously, that stage is only reached at the trial, i.e., in the Court of Session. The words "if necessary" in section 209 of the Code of Criminal Procedure did not occur in the Code of Criminal Procedure of 1882, but were introduced, for the first time, in the Code of 1898. It is, therefore, clear that in a case which is triable by a Sessions Court, it is that Court which tries an accused and calls upon him to enter on his defence. The mandatory provision of section 342 is, therefore, applicable to that Court.
5. The provisions of section 342 of the Code of Criminal Procedure have been discussed in a number of cases arising in this sub‑continent.
6. In Dinu v. Emperor (83 I C 895 ), it was held:‑--
"In a case exclusively triable by the Sessions Court, however, it is the latter Court that tries the accused and calls upon him for his defence, and it is that Court that must strictly conform to the provisions of section 342, and if this is done, the failure of the Committing Magistrate to examine the accused does not vitiate the trial".
7. After the pronouncement of their Lordships of the Privy Council in N. A. Subramania 1yer v. King‑Emperor (28 I A 257), it was held in a number of cases that the omission to comply with the provisions of section 342 of the Code of Criminal Procedure is not a mere irregularity such as could be cured under section 537 of the Code, but is an illegality which vitiates the trial. Ghula v. Emperor (1 P R 1918), Haji Muhammad Bakhsh v. Emperor (A I R 1922 Lah. 45), Nanak Chand v. Crown (A I R 1924 Lah. 734), Ghaza Ali v. Emperor (A I R 1925 Lah. 288), Muhammad Sadiq v. Emperor (A I R 1926 Lah. 51), Lachman Singh v. Emperor (A I R 1926 Lah. 551) and Fazal Ahmad v. Emperor (A I R 1926 Lah. 684).
8. The contrary view that a mere non‑compliance with the provisions of section 342 of the Code of Criminal Procedure does not vitiate the trial unless the accused has been prejudiced by the procedure adopted is based on V. M. Abdul Rahman v. King‑Emperor (A I R 1927 P C 144), which was a case arising under section 360 of the Code of Criminal Procedure. Their Lordships of the Privy Council distinguished Subramanla lyer's case on the ground that in that case the procedure adopted was one which the Code positively prohibited and held that a mere omission or irregularity in the case of other provisions of the Code unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction.
9. The effect of the omission to comply with the provisions of section 342 of the Code of Criminal Procedure was considered in Dwarkanath Varma and another v. Emperor (A I R 1933 P C 124). The following observations at page 130 of the report deserve consideration:‑
"Section 342, Criminal P. C. provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court shall question him generally on the case after the witnesses for the prosecution have been examined. In pursuance of this section, one of the puisne Judges put questions to the doctor. The only questions put on the contents of the post‑mortem report were as to the congestion of some of the organs the cause of antiperistalsis, and the omission from the report of the condition of faecal matter, and clots of blood at the orifices of the ruptures deposed to at the Sessions. The other question is a general question whether there was anything else he desired to say about the charges or the evidence. The learned Chie' Justice told, the jury that the absence of blood in the body cavity was a vital point. If so it is plain that under section 342 of the Code it was the duty of the examining Judge to call the accused's attention to this point and ask for an explanation.
Their Lordships observed at page 130, column 2, that they felt "bound to express the opinion that Dr. Gaya Prasad has been the victim of a serious miscarrige of justice." Dwarkanath's case is a direct authority regarding the interpretation of section 342 of the Code of Criminal Procedure. Thus, their Lordships laid stress on the legal necessity of enabling the accused to explain any circumstances appearing in the evidence against him by putting questions to him under section 342 of the Code of Criminal Procedure. Their Lordships clearly pointed out that it was not sufficient to put the accused a general question whether there was anything else which he desired to say about the charge or the evidence. According to their Lordships the attention of the accused should be drawn to the points which the Court considers vital, and failure to do so amounts to miscarriage of justice.
10. Section 537 of the Code of Criminal Procedure was considered by their Lordships of the Privy Council in Billukuri Kottaya v. Emperor (AIR 1947PC67). The following observations are important:‑--
"When a trial is conducted in a manner different from that prescribed by the Code, as in N. A. Subramania v. Emperor, the trial is bad and no question of curing the irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code some irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code."
In my humble opinion, where an accused person is not examined under section 342 of the Code of Criminal Procedure, the trial must be deemed to have been conducted in a manner different from that prescribed by the Code, and is, therefore, bad in law, and the question of curing the irregularity does not arise. It is noteworthy that section 537 of the Code of Criminal Procedure was not availed of in Dwarkanath's case.
11. The principle laid down in Dwarknath's case was reiterated and applied in the following cases :‑
(1) In Rahim Bakhsh v. Crown P L D 1952 F C 1, it was held :‑
"It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural Justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking him for his explanation when he was examined in Court."
(2) Similarly, in Aminul Haq v. Crown P L D 1952 F C 63 it was observed:‑--
"Section 342, Criminal P. C. enjoins that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342 of the Criminal Procedure Code is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. It is true that section 342 was not intended for the purposes of cross‑examining the accused or for filling up gaps in the case for the prosecution. But it is no less serious an error to go to the opposite extreme, and, by excess of restraining, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him."
(3) In Abdus Salam Molla v. The Crown P L D 1955 F C 129 it was held that particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something of which he was not given any notice, and to which he was never required to give his own reply. In this case the appellant was not given an opportunity to explain the figures etc. noted on a slip of paper recovered from his pocket, the entries on the slip allegedly having been made in his handwriting. His conviction under section 409 of the Pakistan Penal Code was set aside and retrial ordered.
(4) In Munawar Ahmad v. The State P L D 1958 S C (Pak.) 300 a piece of evidence against the appellant was the oral con fession alleged to have been made to a Magistrate immediately after the trap laid to arrest him. The appellant was never afforded an opportunity to explain this circumstance appearing against him. It was pointed out by the learned Advocate General that in the cross‑examination of the Magistrate it was suggested that the accused was told by him that if he confessed he might be dealt with departmentally and from this it was sought to argue that thereby an opportunity for an explanation had been offered to the accused. Repelling the contention, it was held that a question put in the course of cross‑examination by counsel cannot have the same weight as an answer given by an accused person in reply to a pointed question bringing to his notice a matter raising an inference of guilt against him. The view taken in the cases of Rahim Bakhsh and Aminul Haque was followed and reiterated.
(5) In Muhammad Ali v. Crown P L D 1950 Lah. 239, Muhammad Sharif and Shabir Ahmad, JJ held that the second part of subsection (1) of section 342 of the Code of Criminal Procedure is imperative and appears to have been enacted to give the accused person an opportunity to show to the Court that what is being considered to be against him is in reality not so. In this case the appeal was accepted and the case was remanded for retrial. Dwarkanath v. Emperor was referred to and followed.
12. In the following cases it was held that non‑compliance with the requirements of section 342 of the Code of Criminal Pro cedure is not necessarily fatal to the trial and that the irregularity is curable under section 537 of the Code.
(1) Abdul Wahab v. The Crown P L D 1955 F C 88. The facts of the case were that the accused was charged under section 409 of the Pakistan Penal Code. It was alleged that during the course of one year he had collected money from 86 persons but had not credited it to the Committee con cerned. The only question which was put to the accused during his examination under section 342, Cr. P. C. was "You have heard the examination and the cross‑examination of the witnesses, what is your defence " Their Lordships refused to interfere with the conviction on the ground that although the question put to the accused was hardly true to the requirements of section 342, Cr. P. C., yet no miscarriage or failure of justice had been proved in this case. The reason for arriving at this conclusion was stated thus:‑--
"The accused is literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case."
(2) In Muhammad Yaqub v. The Crown P L D 1956 F C 143, the facts were that Muhammad Yaqub was convicted under section 420, P. P. C. for having signed an application for permit on behalf of one Haji Mola Bakhsh to export a certain quantity of hides to India yielding a certain amount as customs duty to the Government of Pakistan which was deposited in a bank in advance. Later, Muhammad Yakub exported double the quantity of hides and thus cheated the Government of customs duty. No question was put under section 342, Cr. P. C. calling upon Muhammad Yakub to state whether the application had been signed by him or not. Their Lordships maintained the conviction and sentence. The following passage at page 146 of the report deserves consideration
"We should have set aside the conviction if we had felt that the omission to question the appellant on this part of the case had resulted in a miscarriage of justice or prejudiced the appellant in his defence but no such suggestion has been made from the bar."
This case was decided on its peculiar facts. The convict appellant never urged that he had not been given an opportunity to explain the position re: an important circumstance appearing against him in the evidence.
13. I now proceed to consider cases in which the accused had been properly examined by the Committing Magistrate but the Sessions Judge had, as in the present case, failed to perform his duty.
(1) In Shammun (Shamman) v. Crown P L D 1952 Lah. 374 the confession of the accused was not put to him under section 342, Cr. P. C.' either when he was examined by the committing Magistrate or when he was questioned at the trial after the close of the prosecution evidence. Following Rahim Bakhsh v. The Crown, Munir, C. J. and Jan, J. set aside the conviction and sentence and ordered Shamman to be re‑tried from the stage when he was examined by the Additional Sessions Judge after the close of the prosecution case. The following observation on page 376 of the report is noteworthy:‑-
"The real object of questioning .the accused is that he should know what the precise case against him is and what the evidence in support of it is. Therefore, the precise act alleged against him must be brought out in his examination and if he is being made liable for an act done by another person, whether that person is being jointly tried with him or not, he must be informed of that legal position. But 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 applies to such omissions and irregularities and no conviction can be set aside on the ground of defective examination of the accused unless it has in fact occasioned a failure of justice. This in each case is a question of fact to be determined by the Appellate Court on the circumstances of the particular case. But when the irregularity is so‑ gross and palpable that it amounts to a complete disregard or violation of the provisions of section 342, the Appellate Court may presume a failure of justice on the broad principle that a necessary condi tion of fair trial was not observed by the trial Court."
(2) In All Shan v. The Crown P L D 1953 Lah. 14, though the accused had been properly examined in the Court of the Committing Magistrate, in the Court of Sessions they were merely asked whether they had made the statements which were read out to them, and whether they wished to add anything to those statements. It was urged that the failure to comply with the provisions of section 342, Cr. P. C. had invalidated the trial. The contention was repelled and it was held:‑--
"Wherever, however, a Sessions Judge has failed to perform this duty and the question is whether the irregularity com mitted by him has caused any prejudice to the accused or it should be seen whether all the circumstances appearing in evidence against the accused in the committal Court have been put to them by the committing Court or not. If they have been put and the accused have been given the opportunity to explain them, then it should be seen whether any new circumstances have appeared in evidence in the Court of Session which the accused had not the opportunity to explain: If it is found that all the material circumstances have been put to the accused in the committing Court and no new circumstances have appeared in evidence against them in the Court of Session, then the failure of the Sessions Judge to repeat the questions put in the committing Court and to obtain the answers already given may not be treated as an irregularity which should vitiate the trial."
The reasoning is based on the assumption that the accused, if questioned, would have given the same answers which he had already given before the Committing Magistrate's Court.
In my humble opinion, it is not possible to anticipate what the accused would have said. If he had been questioned at the trial, he might have amplified what he had already stated in the committing Court. It is equally possible that he might have made a different and a new statement. Their Lordships of the Privy Council would not assume in the following case what evidence the witness would have given if he had given evidence without the aid of his statement made by him to the police.
(3) In Zahiruddin v. Emperor A I R 1947 P C 75=P L D 1947 P C 13, Mr. Roy, while giving evidence made use of a statement made by him to the police. It was urged before the High Court that the evidence of the witness at the trial must be rejected. The High Court held that there was no substantial reason for thinking that Mr. Roy's evidence, without the use of the statement to refresh his memory, would have been in any material particular different from the evidence which he actually gave. On appeal to the Privy Council, their Lordships observed:‑--
"The observations of the learned Judges that there was no substantial reason to think that Mr. Roy's evidence unaided by the written statement would have been in any material point different from the evidence which he gave, and that no real prejudice was caused to the appellant by the use of the statement, are in the opinion of their Lordships unfortunate and ill‑founded. It is impossible to say what Mr. Roy's evidence would have been if he had not used the statement to aid his memory, and it is also impossible to say that prejudice may not have been suffered by the appellant.
Similarly, it is impossible to say what the accused would have stated if he had been questioned at the trial about the circum stances in evidence against him. If it were safe for the High Court to speculate what the accused could or would have stated when questioned, his examination by the trial Court would not have been necessary under section 342 of the Code of Criminal Procedure. There is no warrant for substi tuting the speculation for the examination of the accused.
With due respect, it may be stated that their Lordships of the Privy Council did not speculate in Dwarkanath's case where a single omnibus. question had been put. Attention in this respect may also be drawn to Rahim Bakhsh's case anal Aminul Haque's case.
(4) In Muhammad Shafi v. The Crown P L D 1954 Sind 141, it was held by a Full Bench (Vellani, J., dissenting) that the trial was not vitiated and there was no departure from the mode of trial, but that it was the duty of the appellate Court to consider whether the contravention of section 342, Cr. P. C. had occasioned a failure of justice.
(5) In Tara Singh v. The State A I R 1951 S C 441, the Sessions Judge read over the examination of the accused in the committal Court, and then put the following questions :‑
"Q. Did you make the statement on 9th November 1949, as read out to you, and is it correct
A. Yes.
Q. Have you anything else to say
A. No, I am innocent.
Q. Do you wish to produce any defence
A. No.
The appellant was not questioned to explain the circumstances appearing in evidence against him at the trial. He was asked whether the statement made before the committing Magistrate and the answers given there were correctly recorded. It was held that the procedure adopted by the Sessions Judge did not comply with the requirements of the section. The conviction and the sentence were set aside and the case remanded to the High Court with a direction that the Court will order a retrial de novo in the Sessions Court, treating the committal as good.
(6) Mosahib Kaka Chowdhry v. State of West Bengal P L D 1956 S C (Ind.) 303 is another case from the Supreme Court of India in which sections 342 and 537 of the Code of Criminal Procedure were considered. The accused persons were tried by the Sessions Judge with the aid of a jury. The questions put to each of the accused in the Sessions Court and the answers thereto were as follows :‑
Q. You have heard the charges made and the evidence adduced against you. Now say, what is your defence What have you to say
A. I am innocent.
Q. Will you say anything else
A. No.
Q. Will you adduce any evidence in defence
A. No."
The following passage occurring in the judgment deserves con sideration :‑
"We are, therefore, not prepared to accept the argument of the learned counsel for the appellants in this behalf. In any case, an argument of this kind which would, if accepted, necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave."
14. It has been shown above that the statement of an accused person recorded by the Committing Magistrate is tendered as evidence under section 287 of the Code of Criminal Procedure. Once it is so tendered, it becomes part of the prosecution case. If the accused is asked: "You have heard your statement, what have you to say about it " it merely means that his attention has been drawn to a part of the prosecution case against him, and his attention remains undrawn to the evidence recorded by the Sessions Judge at the trial. This is a complete disregard of the provisions of section 342 of the Code of Criminal C Procedure, and in the words of Munir, C. J., in Shammun v. Crown "the appellate Court may presume failure of justice", and according to their Lordships of the Privy Council in Dwarkanath's case "it is miscarriage of justice."
15. Thus, in the case under consideration, the omission on the part of the Additional Sessions Judge to question the appellants is fatal.
16. For the reasons given above, I accept the appeal, set aside the convictions and sentences of the appellants, and remand the case to the learned Additional Sessions Judge to F proceed according to law from the stage of the examination of the accused. If the same set of assessors is not available, the trial will be de novo by the present Additional Sessions Judge, Gujrat.
17. The sentence of death imposed on Fazal appellant is not confirmed.
18. I would be failing in my duty if I did not draw the attention of the learned Additional Sessions Judge to the following observations of Muhammad Munir, C. J., in Shammun v. Crown (P L D 1952 Lah. 374):‑--
"It is high time that Sessions Judges and Magistrates under stood and rightly applied the provisions of section 342 of the Code of Criminal Procedure. Proper questioning of an accused person is an essential constituent of a fair trial and is as necessary as the framing and explaining of the charge to him or putting to him the precise accusation against him. In the present case, the learned Additional Sessions Judge did no more than put. to the appellant his statement recorded by the Committing Magistrate and ask him whether he had made that statement, whether the statement was correct and whether he had anything more to say. This procedure does not comply with the provisions of section 342 and is definitely unsatisfactory, and it is the duty of the Sessions Judge to put to the accused every specific circumstance appearing in the prosecution evidence, with a view to giving him an opportunity to furnish such reply to or explanation of it as he may wish. The evidence at the trial is not always precisely the same as at the enquiry. But even if the prosecution evidence at the trial maybe the same, it is clearly the duty of the Sessions Judge himself to question the accused generally on the case. Further, the putting of the entire prosecution case to an accused in a single composite and highly involved question must be avoided, because any such question is likely to bewilder and confuse him. The real object of question ing the accused is that he should know What the precise case against him is and what the evidence in support of at is. Therefore, the, precise act alleged against him must be brought out in his examination and if he is being made liable for an act done by another person, whether that person is being jointly tried with him or not, he must be informed of that legal position."
Similarly, the following observations of Akhlaque Husain, J., in Muhammad Yaqub v. The Crown (P L D 1956 Lah. 174) also deserve observation :‑
"A trial Court failing to comply faithfully with the require ments of section 342, Criminal P. C., would be guilty of failure to perform what is perhaps the most solemn act during a criminal trial, regardless of the fact whether that failure is ultimately held to vitiate the trial or not."
A.H. Case remanded.
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