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Criminal Revision Application No. 471 of 1960, decided on 1st November 1961.

--- Accused not called upon to enter on their defence nor questioned under S. 342 ‑ Lacunae not curable as irregularities under S. 537, Criminal Procedure Code but illegalities vitiating trial‑Case remanded.

Muhammad Ismail v. State P L D 1956 Lah. 862 rel.

M. A. Naqvi for Petitioners.

Mumtaz Hussain and G. Safdar Shah for Respondents 1 & 2.

Dates of hearing : 25th September, 2nd, 23rd and 30th October 1961.

The applicants in this case had been convicted under section 500, P. P. C. and sentenced to pay a fine of Rs. 250 each or suffer simple imprisonment for one month each by Mr. Muhammad Nasrullah Khan, Magistrate First Class, Karachi. As appeal was tiled and the same was dismissed by the learned Additional Sessions Judge on 31st August 1960, a revision application has now been filed before this Court challenging the findings of the two Courts below.

2. The case of defamation bad started from certain publica tions, Exhs. 1/D and 1/E, made In the newspapers and attributed to the applicants. A number of points were raised and argued at great length but one of such points on which I wish to dispose of this revision application was that the applicants in this case were not called upon to say as to whether they would examine any evidence in defence under section 256, Cr. P. C. after the case of the prosecution was finally closed. It is also contended that after further cross‑examination of the prosecution witnesses under section 256, Cr. P. C. the applicants were also not questioned under section 342, Cr. P. C. The arguments advanced on this issue are unanswerable. The position reflected from the record is that the witnesses were examined and cross‑examined on 10th September 1958 and 18th November 1958. Charge against the applicants was framed on 20th December 1958 and the witnesses were further cross‑examined after the plea on 29th December 1958. There is nothing on the record to show that the applicants were ever called upon to enter on their defence. There is also no appli cation on the record from the applicants to indicate that they did not desire to examine any witness in defence. The statements of the applicants also show that questions under section 342, Cr. P. C. after the witnesses were further cross‑examined were not put them. These lacunae in the case are not irregularities curable under section 537, Cr. P. C. These defects in the trial are the defects of procedure and tantamount to illegalities which vitiate the trial from the state wherefrom illegalities have been committed. Reliance for this purpose is placed on Muhammad Ismail v. The State (P L D 1956 Lah. 862). I therefore do not wish to go into all the arguments raised by the learned counsel for both the sides as I do not wish to express my views on the arguments so addressed lest that might prejudice the case of one or the other party. In view of the illegalities committed I set aside the order of conviction and remand the case for retrial from the stage from where the illegali ties pointed out above have been committed. The learned Magis trate may after compliance with the procedure laid down in the Code of Criminal Procedure pass a fresh order. The revision application is consequently allowed. The case is sent to the City Magistrate who will try it himself or send it to one of the Addi tional City Magistrates other than the one who had heard the case previously.

S. B./A. H.

Retrial ordered.

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