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Criminal Revision No. 3 of 1960, decided on 6th April 1960.
S. 342‑Confers a basic right‑Examination of accused without specific inquiry whether he would adduce defence evidence‑Renders conviction illegal.
The right conferred by section 342, Criminal Procedure Code, 1898 is a basic right of the accused. Courts should be vigilant against detracting from the elements of the right as conferred by the section on the accused. Question whether the accused would like to examine any defence evidence, should be not in the mind of the Court only but should be expressed directly to the accused by the Court to elicit directly the view point of the accused with regard to his right and desire for bringing D. Ws. The mere fact of adjournment granted at the instance of the accused cannot indicate that the accused from before knew that he could bring his witnesses at that stage if he so liked. Failure of the Court to ascertain from the accused whether he has any defence to make renders the conviction illegal.
Moksed Ali Molla and others v. The State P L D 1960 Dacca 13 ref.
A. M. Sayem for Petitioner.
S. M. Amin Azhar for Opposite‑Party.
In view of the order I am going to make in this case, it is not necessary to set out the facts. Suffice it to state that the petitioners along with two others who were charged under section 148 of the Pakistan Penal Code and acquitted by the trial Court were placed before Mr. M. A. Wahed, Magistrate, 1st Class, Rangpur to take their trial under sections 147 and 323 of the Pakistan Penal Code ; petitioner No. 4 having further been charged under section 325 of the Pakistan Penal Code.
2. Mr. M. A. Wahed, the learned Magistrate while acquitting the petitioners Nos. 1 and 3 under section 147 of the Pakistan Penal Code convicted and sentenced them to rigorous imprisonment for 3 months and to pay a fine of Rs. 100 each under section 323 of the Pakistan Penal Code in default to rigorous imprisonment for 3 months each which was ordered to run consecutively, further convicting and sentencing the petitioner No. 4 to rigorous imprisonment for 3 months and to pay a fine of Rs. 100 in default to rigorous imprisonment for 3 months which was ordered to run consecutively ; again convicting and sentencing the petitioner No. 4 for causing assaults to Abdul Majid under section 323 of the Pakistan Penal Code and sent encing him to rigorous imprisonment for three months and to pay fine of Rs. 100 in default to rigorous imprisonment for three months. The sentences were ordered to run consecutively and independently.
3. On appeal, the learned Sessions Judge set aside the conviction and sentence of petitioner No. 4 the alleged assault on P.W. 2 but upholding the other convictions and sentences passed by the learned Magistrate. Hence this revision.
4. Mr. A. M. Sayem; learned Advocate for the petitioners has pressed ground No. 7 of the petition which is as follows :
"For that the learned Court of appeal below erred in failing to notice that the petitioners were seriously prejudiced in their defence, by reason of a very unsatisfactory examination under section 342, Cr. P. C. in which they were not even asked if they would like to examine any defence witnesses, although three witnesses cited in the charge‑sheet could yet be examined by the prosecution."
5. While pressing this ground Mr. Sayem has submitted that there is nothing in the examination under section 342 of the Criminal Procedure Code or in the charge to indicate that accused was made aware of his right after the stage to bring his own evidence, inasmuch as the charge and the examination under section 342 of the Criminal Procedure Code read as follows :
"That you on or about the 26th of Jaistha, 1366 B.S., voluntarily caused hurt to the complainant Abdul Awal by lathi blows and thereby committed an offence under section 323 of the Pakistan Penal Code and within my cognizance. And I thereby direct you be tried by the said Court of the said charge.
The charge was reed over and explained to the accused persons who pleaded not guilty."
The examination under section 342 reads as follows :
"The charge against you that on the 22nd Jaistha, 1366 B. S., you unlawfully assembled with others for the purpose of assaulting Abdul Awal and his witnesses and you yourself with other accused assaulted the complainant with lathis and that by reason of the lathi blows Abdul Majid, witness No. 2 got his middle finger injured and broken.
You have heard the evidence on those points. What have you to say Ans. I am innocent."
6. The above discloses that the accused was not asked as to whether he would like to bring forward his witnesses or had any defence to make.
7. Mr. Sayem has cited in support the decision in Moksed Ali Molla and others v. The State (P L D 1960 Dacca 13) in which it was held that "a general question to the accused in their examination under section 342. Cr. P. Code, as to what their reply was having heard the prosecution evidence, and if they had anything further to say without a specific enquiry as to whether they would adduce any defence evidence is not a due compliance with the provision of section 342 of the Code, inasmuch as such an omission on the part of the Court may very well mislead the accused persons into the belief that that the stage for calling of the defence evidence would arrive after they had been asked by the Court if they wished to adduce any such defence.
Failure of the Court to ascertain from the accused whether they have any defence to make renders the conviction illegal".
8. In the case cited also as in the present case, it appears that even at the stage of charge the accused was not asked if he had any defence to male, far from there being any direct question on that point in the examination under section 342 of the Criminal Procedure Code.
9. Mr. Amin Azhar, the learned Advocate for the com plainant opposite‑party has referred to the order‑sheet of the learned Magistrate showing as follows
"5‑8‑59 Accused appeared. Cross‑examined P. W.1 and examined accused under section 342, Cr. P. C. They plead not guilty. To 18‑8‑59 for defence argument. Accused as before. 18‑8‑59. Accused appeared. Defence lawyer prays for time. Allowed to 24‑8‑59. Accused as before".
10. On the basis of the above, Mr. Amin Azhar argues that no prejudice could have been caused to the accused and that he was quite conscious of his right to adduce evidence.
11. Mr. Sayem has contended that the order‑sheet does not disclose that there was any adjournment for defence witness but it was only for argument and that the very petition for adjournment shows that time was prayed for argument as the lawyer was busy.
12. Mr. Sayem contends that the object of the examina tion under section 342, Cr. P. C. is to establish a sort of personal relationship between the Judge and the accused whether the accused would like to examine any defence evidence, should be not in the mind of the Judge only but should be expressed directly to the accused by the learned Judge to elicit directly the view point of the accused with regard to his right and desire for bringing D. Ws.
13. The order‑sheet does not clearly indicate that the accused knew that he was being given the time and opportunities to bring defence witness or that he was entitled to do so. The adjournment was for argument only. The right conferred by section 342, Cr. P. C. is a basic right of the accused. Courts should be vigilant, against detracting from the elements of the right as conferred by the section on the accused.
14. The mere fact of adjournment granted at the instance of the accused cannot indicate that the accused from before knew that he could bring his witnesses at that stage if he so liked.
15. In the result the Rule is made absolute and the con viction and sentence are set aside and the case is remanded back to the trial Court for retrial from the stage at which the exami nation under section 342, Cr. P. C. was taken and for disposal in the light of the observations made above. The petitioners will continue on the same bail.
K. B. A.
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