1989 PLP 683 (MLD)

Azad Bin Hyder for Appellants (in Criminal Appeal No. 47 of 1987). Nizamuddin Memon for Appellant No.1 (in Criminal Appeal No. 49 of 1987). A.I. Qarni for Respondent. Date of hearing: 19th June, 1988. These two appeals arise out of judgment passed by the learned Special Judge Anti‑Corruption (Provincial), Karachi dated 21‑3‑1987, whereby he convicted both the appellants under section 161 C.P.C. read with section 5(2) of the Prevention of Corruption Act II of 1947 and sentenced ‑‑ach of them to undergo R.I. for four months and to pay a fine of Rs.1,000 or in default of payment of fine to undergo further R.I. for one month.

2. Preliminary objection has been raised by the learned counsel for the appellants that the mandatory provisions of section 340(2), Cr.P.C. have not been complied with, as the appellants were not examined on oath by the learned trial Judge to disprove the charges or allegations against them as required under the said subsection. Reference is made to the cases of Muhammad Oasim v. The State P L D 1986 Quetta 286 and Jan Muhammad v. The State 1987 P Cr. L J 2302 wherein it is held that non‑examination of the accused under section 340(2), Cr.P.C. was an illegality not curable under section 537, Cr.P.C. Reference may also he made to the judgment in Criminal Appeal No.86 of 1985, Jan Muhammad v. The State and judgment in the case of Noor Muhammad v. The State (Criminal Appeal No.214 of 1987) wherein a Division Bench of this Court took similar view.

3. No doubt leave to appeal has been granted in the case of Mst. Amir Khatoon v. Faiz Muhammad and others 1986 S C M R 1182 and some of the questions for consideration before their Lordships are whether section 340(2), Cr.P.C. and Article 44 of Qanun‑e‑Shahadat, 1984 have retrospective effect and whether the said laws have changed the basic principle of criminal jurisprudence, namely that the prosecution shall prove its case and the accused would not be burdened with the proof of his innocence in such a way, that the accused now be burdened with some responsibility to reach the truth regarding his guilt or innocence.

4. The other question before their Lordships is as to whether the conflict of an authority as appearing from the case‑law cited is reconcilable.

5. Till the Hon'ble Supreme Court decides these question, the decision of Division Bench of this Court holding that the provisions of section 340(2), Cr.P.C.I are mandatory, is binding upon this Court. As the provisions of the said section 340(2) Cr.P.C. have not been complied in this case, the omission and irregularity is not curable under section 537 Cr.P.C. Learned counsel for the State also concedes to this legal position. I accordingly allow both the appeals, set aside the sentence and conviction against both the appellants and remand their case back to the learned B trial Judge to proceed from the stage when the statement of the appellant is to be recorded under section 340(2), Cr.P.C. The learned trial Court is directed to give fresh findings unprejudiced by the previous decision. M.Y.H./M‑696/K Appeal allowed.